Anti-Discrimination Decisions

[2008] TASADT 05

Catchwords:

Equal opportunity - Inquiry - Alleged direct discrimination in the area of employment on the basis of political belief or affiliation, association with a person who has, or is believed to have, a prescribed attribute, and political activity - Circumstances in which an inference of discrimination could be drawn in the absence of direct evidence - Anti-Discrimination Act 1998 (Tas) ss3, 14, 16, 22, 104

Representation:

Reasons For Decision

TRIBUNAL'S DECISION

1. For the reasons set out in this decision, the complaint brought by Dr Karen Edyvane against the Department of Primary Industries, Water and Environment is dismissed.

THE COMPLAINT UNDER CONSIDERATION

2. This is a decision in respect of a complaint of direct discrimination brought by Dr Karen Edyvane against the Department of Primary Industries, Water and Environment (DPIWE). The complaint was lodged on 8 April 2005 and alleged discrimination on the basis of gender, political belief or affiliation, and association with a person who has, or is believed to have, a prescribed attribute. Political activity was subsequently added by Dr Edyvane as an additional attribute to her complaint. The complaint alleged discrimination in the context of recruitment, following Dr Edyvane’s unsuccessful application for the position of Project Officer (Marine) with the Resource, Planning and Development Commission of DPIWE. In essence, it was alleged that despite her significant experience in the field, Dr Edyvane did not an obtain an interview for this position due to her political beliefs and activity in relation to Tasmanian kelp forests, gender, and association with persons with an attribute, namely Greens member Senator Bob Brown, and State Greens member Mr Nick McKim MHA. The complaint was brought pursuant to section 14 of the Anti-Discrimination Act 1998 (Tas) (‘the Act’) dealing with direct discrimination.

HISTORY OF THE PROCEEDINGS

3. On 2 May 2005, Dr Edyvane’s complaint was accepted by the Anti-Discrimination Commissioner (‘Commissioner’) for investigation on the basis that it disclosed possible breaches of section 16 (in particular (e), (m), (n) and (s)) and section 104 of the Act. The Department of Primary Industries, Water and Environment (DPIWE) was named as Respondent to the claim.

4. The Complaint was referred to the Tribunal on 3 February 2006. A number of Directions Conferences were held during 2006. This included a process of disclosure of relevant documents, and involved a direction order from the Tribunal that the Respondent make available to the Complainant copies of the applications of the applicants for the position who had been short-listed for the position of Project Officer (Marine) with the Resource, Planning and Development Commission of DPIWE (with names and identifying details removed). In addition, a suppression order was made that there was to be no publication of any information related to these job applications that would reveal the identity of the applicants.

5. The matter had initially been set down for Inquiry in early September 2007 but could not proceed at this time due to unavoidable commitments of the Complainant and was accordingly rescheduled for hearing in February 2008. At the Inquiry, Ms Mills appeared on behalf of the Complainant and Mr Taylor appeared for the Respondent.

THE COMPLAINANT'S CASE

6. At the outset of the hearing, Ms Mills advised the Tribunal that the allegation of discrimination on the basis of the attribute gender would not be pursued at inquiry. With respect to the claim on other grounds, it was submitted that in light of Dr Edyvane’s qualifications and experience, the only inference that could be drawn from the failure to give her an interview is that she was directly discriminated against because of her political belief or affiliation, association with a person who has, or is believed to have, a prescribed attribute, and political activity. It was further submitted on Dr Edyvane’s behalf that she is seeking compensation and an apology as a result of this discrimination. An amended Particulars of loss and damage was tendered in evidence (Exhibit C1).

7. The following items were tendered as Exhibits for the Complainant:

• Particulars of Loss and Damage and Particulars of Orders for Compensation – Exhibit C1
• Statement of Agreed Facts dated 9 August 2007 - Exhibit C2
• Statement of Duties for Project Officer Marine - Exhibit C3
• Job Application Project Officer Marine - Exhibit C4
• Letter from Department advising application unsuccessful dated 8 February 2005- Exhibit C5
• Bundle of media clippings - Exhibit C6
• The Bulletin ‘Smart 100’ Issue- Exhibit C7
• Mercury clipping, dated 19 October 2003 - Exhibit C8
• Letter to Senator Colbeck dated 29 September 2003- Exhibit C9
• Letter to Judy Jackson dated 26 March 2004 - Exhibit C10
• Letter to RMPAT dated 6 October 2004- Exhibit C11
• Administrative and Clerical Employees Award (2005) - Exhibit C12
• Reference from Dr Michael Lockwood dated 1 August 2005- Exhibit C13
• Applications for employment from three of the four short-listed candidates - Exhibit C14

SUMMARY OF THE EVIDENCE OF THE COMPLAINANT AND THE COMPLAINANT'S WITNESSES

Dr Karen Edyvane

8. The Complainant gave evidence that since September 2005, she has held the position of Head of the Marine Diversity Group, in the Northern Territory (a public service position with the Northern Territory Government.) She also holds an Adjunct Chair at Charles Darwin University and is an Honorary Research Associate with the University of Tasmania.

9. Dr Edyvane told the Tribunal that she had applied for the position of Project Officer (Marine) with the Resource, Planning and Development Commission of DPIWE. Her application (Exhibit C4) had addressed the Statement of Duties required for that position (Exhibit C3). Her application had attached a copy of her Curriculum Vitae which set out her complete career profile, including details of her qualifications and experience specialising in marine habitats and marine diversity, including her work for the South Australian government as Program Leader of their marine biodiversity program.

10. Dr Edyvane confirmed that she had not received an interview for this position, and instead had received a letter from the Department advising her that her application had been unsuccessful (Exhibit C5). She gave evidence that when she subsequently phoned the Resource Planning and Development Commission (RPDC) to find out why she did not get the position; she was informed that she did not meet all the selection criteria. As she was not a public servant, she had no right of appeal and accordingly she sought to challenge the decision elsewhere, initially through the Tasmanian Ombudsman’s office, and ultimately through a complaint lodged with the Anti-Discrimination Commission.

11. She gave evidence to the Tribunal about the substantial work she had undertaken in her nine years working in South Australia (1990-1999), planning the technical and policy blueprint for establishing marine parks in South Australia and setting the first and largest temperate marine park in Australia. She was also responsible for developing education programs and providing detailed briefings for and meetings with key stakeholders. She told the Tribunal that consultation was also an important part of her role and that she had provided details of her extensive consultation activities in her application, highlighting also the complexity of the negotiation processes undertaken involving for example, indigenous issues, economic impacts of marine parks on fisheries etc. The Tribunal was also told about a range of awards that Dr Edyvane had received for this work.

12. Dr Edyvane gave evidence that in 1999, she was seconded to Tasmania and invited by the Tasmania Government to prepare a ‘Marine Strategy,’ the aim of which was to set out a technical, planning, consultation blueprint for identifying and establishing marines parks in Tasmania. She told the Tribunal that she had worked on this Marine Strategy document for approximately one year, till January 2000. This had involved the establishment of a council of key stakeholders to provide input into the development of the marine strategy: the Marine and Marine Industries Council comprising key marine representatives, fisheries, tourism, indigenous, conservation and scientific stakeholders. Dr Edyvane’s role was as key technical adviser for the Council, preparing all major briefings, developing the business plan, writing Ministerials etc. She explained to the Tribunal that two documents resulted of which she was the principal author: a strategy document for public consultation and a detailed background Report with additional information with regard to national and international commitments, Tasmania’s marine biodiversity etc.

13. Dr Edyvane also outlined to the Tribunal the rationale and operation of the ‘Working Group’, aimed at developing a whole of government approach to potentially contentious issues. She had participated on this Working Group along with others including Mr Peter Bosworth, Mr Alex Schaap and Mr Dennis Witt. She told the Tribunal that in her dealings with this Working Group, she had found the fisheries people (Mr Alex Schaap and Mr Dennis Witt) non-receptive, aggressive and rude.

14. Dr Edyvane had been on maternity leave for seven months from the end of January 2000 and then returned to work part-time. She told the Tribunal that the ensuing Marine Parks Areas report had subsequently been presented to government and was accepted by everyone as a good report.

15. The Complainant then explained that she had later become involved in another project with the Department for the RPDC for a marine proposal for the Kent Group in Bass Straight and the Port Davey Area. These proposals went forward and these areas were declared as marine parks and Dr Edyvane had produced technical reviews and reports for the Department with regard to the implementation of marine parks.

16. During this time, Dr Edyvane had also prepared an application for external funding from the Commonwealth Department of Environment and Heritage to research giant kelp issues in Tasmania. It was explained to the Tribunal that Mr Peter Bosworth was her line manager, but the project was supervised by a steering committee in order to get input from a wide range of perspectives, including diving, tourism, conservation, fishing industry, etc. This steering committee met regularly, and Dr Edyvane provided committee members with progress reports and sought their feedback. This process culminated in the production of a report, the major finding of which was that Tasmania has lost approximately half of its kelp forests over the last 50 years, largely due to climate change and increase in water temperature, but also overfishing, primarily of rock lobster.

17. The Tribunal was told that there had been some difficulties in the finalisation of the report, both of a computer hardware nature, but also in negotiating agreement on the Report’s recommendations in light of tensions on the steering committee, particularly from the fishing representative, the Fishing Industries Council, which disputed that overfishing had played a role in this decline. The delay in the finalisation of the Report had, in turn, led to deterioration in Dr Edyvane’s relationship with her line manager, Mr Peter Bosworth. She claimed that he had been unsympathetic to her view that it was essential to get the scientific information in the Report right because the findings would be controversial and would come under scrutiny. In the week leading up to Christmas 2002, she had resigned (effectively a few weeks ahead of the finalisation of her contract ending) and delivered the finalised report to Mr Peter Bosworth on Christmas Eve 2002.

18. Dr Edyvane’s evidence was that in the following year, she became a Research Associate with the Department of Geography at University of Tasmania. During this time, she undertook some professional consultancy work and also wrote to a number of government ministers in respect of the issue of kelp loss: Tasmanian Liberal Senator Colbeck and the then State Minister for the Environment, Judy Jackson MHA (copies of letters tendered as exhibits: C9 and C10).

19. The Tribunal was informed that in October 2003 the Giant Kelp Report was unofficially released by Greens member, Nick McKim MHA. Dr Edyvane was subsequently approached by media for comment and stated that the Report’s recommendations needed to be implemented, and she had been critical of the Government’s delay in not acting. The Tribunal was told that the Report was not formally released by the Government until 28 November 2003. The Minister had requested that the steering committee reconvene to consider the Report’s finding. It met and formally supported the Report and Dr Edyvane had been commended for her production of it. The steering committee also supported the listing of giant kelp as vulnerable, pursuant to an application for nomination made by Mr Nick McKim MHA under the Threatened Species Protection Act 1995 (Tas), which had attached Giant Kelp Report written by Dr Edyvane by way of evidence in support.

20. Dr Edyvane gave evidence to the Tribunal that she had concerns, from a process point of view, about the fate of the nomination application, given that the person on the scientific advisory committee which would be considering the nomination (Neville Barrett), was on the record for saying that kelp is not an issue, and was from the Tasmanian Aquaculture & Fisheries Institute (TAFI) which had publicly debunked the Giant Kelp Report. To this end, she had written to the State Environment Minister, Ms Judy Jackson MHA, as well as to the Federal Minister. She had also given a number of conference presentations in forums involving also Greens politicians, as well as numerous media interviews (Exhibit C6). Essentially, her message had been that there was a need for action and that once the kelp forests were lost, fishing would suffer too. Dr Edyvane told the Tribunal that she sought a meeting with the State Environment Minister, Judy Jackson MHA, with a view to discussing the giant kelp problem and identifying funding opportunities for further research. Mr Alex Schaap also attended that meeting, having moved to a new role as Director Resource Management and Conservation. Dr Edyvane conveyed to the Tribunal that the meeting had not gone very well from her perspective. The Minister appeared to be questioning the Report’s findings about kelp loss and she was informed by Mr Alex Schaap that giant kelp was not a funding priority for government for at least the next five years, and that even if funding did become available, it would go to TAFI.

21. The Tribunal was told that in the meantime, a recommendation was given to the Minister not to proceed with listing of giant kelp as a threatened species due to insufficient information. Dr Edyvane gave evidence that she had appealed this decision but subsequently withdrew her appeal after being advised that she could not provide additional information to address the new concerns that had been raised.

22. Dr Edyvane told the Tribunal that in December 2004, the Project Officer position was advertised. Essentially this involved the commencement of implementation of the Marine Parks Areas Report that she had written. Major duties entailed a marine planning process for Tasmania in the Bruny Bio region, including consultation with stakeholders. She gave evidence to the Tribunal that she felt that she was well qualified for this position as she had experience in research planning and implementation of marine parks, including undertaking consultation processes.

23. She told the Tribunal that she was the best qualified applicant for this position with the most relevant experience: it was her evidence that none of the other applicants had research planning experience or experience with implementation of marine parks and she was the only one to have undertaken consultation on marine parks which had involved dealing with federal, state and local government agencies. Dr Edyvane also contended that she was the only one who had knowledge of marine biodiversity in Tasmania (indeed, was lecturing on this subject at the University), and was the only person to have worked in marine protected areas in Tasmania for the RPDC. She also told the Tribunal that she was the only candidate to have looked at marine park system planning and had written a large document on this for the South Australian Government. She also sought to highlight her understanding of the contentious nature of marine park areas and the need to establish effective communications strategies in order to minimise conflict.

24. Dr Edyvane gave evidence that she was not a member of the Greens party and her only dealings with it had been in a professional capacity. She noted however that through the media, she was often linked with Green politicians: for example, when she won an Environmentalist Award in 2003 (Bulletin Smart 100 – Exhibit C7) her name was included along with that of Senators Bob Brown and Christine Milne.

25. She also told the Tribunal that Michael Lynch, (one of the witnesses she would be calling) was not known to her socially.

26. Various items were subsequently tendered including a clipping from The Mercury which evidenced coverage of the issues in the local media (Exhibit C8).

27. Dr Edyvane told that Tribunal that after not getting this job she was effectively unemployed and without an income. She had also been unsuccessful in securing Commonwealth research funding which she believed was due to lack of support by the State Government Department. She gave evidence that she was later successful in securing a position in the Northern Territory but prior to that had not intended to leave Tasmania as she had settled her family there and because both her mother and sister had terminal cancer. The Tribunal was informed by Dr Edyvane that she had sought medical help from her general practitioner at this time because she had been having trouble sleeping and suffered from constant headaches, loss of appetite and was depressed. When asked what her expectations had been when she lodge the application for the position, she replied that she thought absolutely she had to win it, and that she was in an unassailable position, at least to get an interview. In response to questions about the effect on her professional reputation of not getting an interview she told the Tribunal that it was damaging not to have a good relationship with government and that she had been concerned of a growing perception that she was not a good person to deal with.

28. When asked about her situation since she has been in the Northern Territory, Dr Edyvane told the Tribunal that she had been successful in securing Commonwealth funding as well as from international sources, and had obtained close to two million dollars in grants.

29. Under cross-examination, Dr Edyvane agreed with the suggestion that she thought that she was the stand out candidate for the job. When asked about whether other candidates could fulfil the job criteria, she conceded that some of the criteria could be established but not experience.

30. Dr Edyvane disagreed with the proposition that there was no particular ranking or priority amongst the criteria: in her view, criteria five and six and probably four would have priority.

31. She rejected the proposition that her application was assessed in a fair manner, pointing to the reasons given in the assessment report which said that she did not have sufficient consultation and liaison experience, which she argued was incorrect.

32. When it was put to her that none of the members of the selection panel knew of the alleged political affiliation, Dr Edyvane questioned this in relation to Mr Dennis Witt, claiming that he would have been aware of the controversy surrounding the release of the Giant Kelp Report and the letter that she had written to Minister Judy Jackson MHA.

33. Dr Edyvane was also cross-examined about the conflict with her line manager and friend of long standing, Mr Peter Bosworth. She told the Tribunal she had felt compelled to resign because she thought that he was being totally unreasonable and had not appreciated the efforts that she had gone to in completing the report. She denied however that her motivation was to hold the Department accountable or that the complaint was about securing financial security.

34. With regard to health matters, it was confirmed under cross-examination that Dr Edyvane had been prescribed medication for her anxiety and depression but had not sought further specialist advice.

35. The Tribunal finds that Dr Edyvane gave her evidence in an honest and reliable manner and is a believable witness. She clearly has a strong conviction that her failure to gain an interview for the position of Project Officer (Marine) was as a result of discrimination against her by the Department. She also described difficulties she had had with personnel of the Department. However, there is nothing in her evidence which provides direct proof of the discrimination that she alleges on the part of the selection panel in reaching its decision for short-listing of candidates.

Dr Robert White

36. Dr White is a medical practitioner in Sandy Bay and gave evidence that Dr Edyvane had been a patient of his practice from 1999-2005. In early 2005, she had consulted him with regard to symptoms of anxiety, sleep disturbance, emotional agitation, tiredness and lethargy. Dr Edyvane had told him that it was related to her professional life where she had not received proper professional support with regard to funding and had been denied opportunities in relation to jobs that she was well qualified for. He had diagnosed an adjustment disorder with anxiety which he described as a condition where a person suffers emotional distress from known stressors- here work related. She was still suffering from the complaint in March 2005 but by December that year, had significantly improved, although the condition had not completely resolved. He told the Tribunal she felt emotionally better at this time because she was being offered a position that was helping her to restore her professional standing. He confirmed that for the period February- March 2005, she was suffering symptoms which impacted on her capacity to work.

37. Under cross-examination, Dr White was asked about other possible factors contributing to Dr Edyvane’s emotional distress such as her mother’s and sister’s illness. He pointed out that this had been known prior to March 2005 and he had not identified stress reactors in her linked with this. He was also questioned about the impact of missing out on the job, in light of other stressor she had identified in the workplace such as lack of support and lack of success in getting funding. Dr White told the Tribunal that whilst it was difficult to give a clear answer, he had formed the view on the basis of what she had told him that missing out on the job was the most significant issue. In response to questions as to why no further psychological therapy was sought for Dr Edyvane, Dr White told the Tribunal, that this would not be to the point with this kind of condition: the condition resolves once the stressors are removed.

38. The Tribunal found Dr White to have been a helpful witness who gave his evidence in an honest and forthright manner. The Tribunal accepts Dr White’s evidence which was of relevance in establishing Dr Edyvane’s reaction, both physically and emotionally, to the alleged discrimination of not being offered an interview for the position of Project Officer (Marine).

Mr Michael Lynch

39. The Tribunal was informed that Mr Lynch was the Director of the Tasmanian Conservation Trust from 1999-2005. He met Dr Edyvane in 1999 when he was appointed to the Marine Council and she was the professional adviser to that body. He gave evidence that Mr Alex Schaap, the State Government representative in Fisheries, was also on the Council, and was openly very rude to Dr Edyvane in his dealings with her.

40. Mr Lynch spoke highly of Dr Edyvane, describing her liaison skills as excellent and the work she did in preparing the strategy document as quite remarkable. When asked whether he thought she was qualified for the Project Officer (Marine) position he replied ‘absolutely’ and told the Tribunal that he found it unbelievable that she was not given an interview. He did not think that the successful applicant, Mr "M", had any marine diversity experience.

41. It was put to him under cross-examination, that as a general proposition, when applications are sought for a position, applications need to be vetted and some candidates miss out, as only one can be successful, to which he agreed. When asked under cross-examination how it was that he was in a position to comment on the successful applicant when he had not seen his application, Mr Lynch replied that it was his job to know the people and their skills. In his view, the successful applicant did not have a level of understanding, knowledge or experience with regard to marine protection areas that should have enabled him to get that position.

42. Mr Lynch told the Tribunal that the inference that he drew from Dr Edyvane not getting an interview was that Mr Alex Schaap’s attitude to her was such that he influenced the short-listing of the people for that position. In his view, no objective argument could be put that she did not have the requisite skills to ensure that she was offered an interview for the position, especially as the job was a direct follow on from the work that she had been doing for the last three years.

43. The Tribunal found Mr Lynch to be an honest and credible witness. His evidence is of relevance in supporting Dr Edyvane’s high professional standing, and the experience and skills she would have been able to bring to the position of Project Officer (Marine).

Dr Michael Lockwood

44. Dr Lockwood holds a position as Senior Lecturer in Environmental Planning at the University of Tasmania and has written in the area of managing protected areas. He told the Tribunal that his relationship with Dr Edyvane is a professional one and that she had input into the chapter on marine protected areas in an Australian text that he had written. He confirmed that he had prepared a reference for her (exhibit C13) and that he still stood by what he had written there. He told the Tribunal that in his view, Dr Edyvane is one of the senior figures in Australia in this area.

45. When asked as to what attributes an ideal candidate for the Project Officer (Marine) would bring to that position, he replied high level strategic planning and thinking skills given the likely contested nature of such an exercise. One would also need a high level of understanding and would probably demand a degree of experience in the sector, for example, management of the resources, how to communicate with stakeholders etc. Dr Lockwood told the Tribunal that Dr Edyvane had these skills: indeed he suggested that she is one of the few people who would neatly match what he viewed as the requirements. He described the difference between knowledge of the strategy document as opposed to experience in planning a marine park as ‘chalk and cheese’. He confirmed that he had been aware of the publicity and debate surrounding the release of the Giant Kelp Report.

46. Under cross-examination, Dr Lockwood conceded that he had not seen any of the applications of other candidates and that he was therefore not in a position to comment on their ability to meet the selection criteria, or whether some candidate may have been better placed to satisfy the selection criteria than Dr Edyvane. He also conceded that he was not in a position to comment on the work of the selection panel. Further, Dr Lockwood had accepted the proposition that where a field of applicants apply for a position, there is a vetting process, and only one applicant is ultimately successful.

47. The Tribunal found Dr Lockwood to be a credible and truthful witness. His evidence provided further support for Dr Edyvane’s high professional standing, and provided his opinion of the range of skills and experience required for the position Project Officer (Marine), and his views of Dr Edyvane’s suitability for that position.

THE RESPONDENT'S CASE

48. In rejecting the Complainant’s contention that the only inference to be drawn from her non-selection for interview was that she had been discriminated against, it was asserted on behalf of the Respondent that none of the alleged attributes were considered by the selection panel and that they considered nothing but the matters in the application. In sum, there was no plot, blacklisting or witch-hunt: rather the Complainant did not satisfy the selection panel as warranting an interview. It was further argued that the role of the Tribunal was to determine if there was evidence of discrimination in not offering Dr Edyvane an interview, not whether the selection panel made a bad decision.

49. The following items were tendered as Exhibits for the Respondent:

• List of Applicants for position of Project Officer (Marine) - Exhibit R1
• Interview Questions - Project Officer (Marine) - Exhibit R2
• Selection Panel Report– Project Officer (Marine) - Exhibit R3
• Minutes of Marine and Marine Industries Council Meetings (meeting 1, 3, 4, 5, & 6) - Exhibit R4

SUMMARY OF THE EVIDENCE OF THE RESPONDENT'S WITNESSES

Ms Carol Hughes

50. Ms Hughes holds the position as Manager of the Research Planning and Development Commission (RPDC). She told the Tribunal that she has had extensive experience with a variety of selection panels, including many that she has chaired. She gave evidence that the Department had handled the administrative aspects, and had received the applications which were then forwarded to her. In her capacity as Chair of the selection panel, she then organised for copies to be provided to panel members, together with the list of all applicants (Exhibit R1) and a copy of the statement of duties (Exhibit C3). The other panel members were Ms Pam Scott, who had been a previous project officer for another marine reserve, and Mr Dennis Witt from within the agency, whom Ms Scott had suggested as a person with appropriate qualifications to assesses applicants for this position.

51. When asked whether there was any ranking or priority of the selection criteria, Ms Hughes told the Tribunal that there was not, and that each was considered as equally important. At the meeting conducted for the purposes of short-listing, it was Ms Hughes’ evidence that there was considerable commonality in panel members’ choices and they settled on four candidates for interview. When asked why the Complainant was not interviewed, Ms Hughes stated that there were some aspects of the selection criteria that some other candidates fulfilled better. In particular, with regard to consultation, her application did not describe her experience as adequately as others. She also stated that the standard of applications was very high and that some applications, like that of the Complainant, were very close.

52. In the follow up interviews with three of the four short-listed candidates (the fourth having withdrawn), a set list of interview questions were used (Exhibit R2) and each candidate was assessed against the selection criteria. Following the interviews, the panel discussed their rating of the individual candidates against the criteria and there was a clear view that the best candidate was "M". This decision was then set down in the Selection Panel report that Ms Hughes had prepared, circulated to the other panel members for their approval, and signatures (Exhibit R3).

53. In response to a question from the Tribunal, Ms Hughes confirmed that it is possible that a person may satisfy the selection criteria but not be interviewed.

54. Ms Hughes gave evidence that after the interviews had been conducted, but before the decision had been made, she had received a telephone call from Dr Edyvane who was who seemed angry and incredulous as to why she had not been offered an interview for the position. Ms Hughes informed that the Tribunal that she had told Dr Edyvane that she could not discuss the matter with her because the appointment process had not yet been completed.

55. Ms Hughes gave evidence that she was not aware of any political activity on the part of Dr Edyvane, or association with any political group. She could not recall seeing any media coverage, as outlined in Exhibit C6, prior to the application process. She was very sure that the subject had not been discussed with anyone else and that nothing else had been taken into consideration. She denied speaking to any other persons about the matter, (including Mr Peter Bosworth, Mr Alex Schaap and Professor Colin Buxton) and had not received any communication from any other person about Dr Edyvane’s application. It was her view that the Complainant’s application was handled and assessed in exactly the same way that everyone else’s application was assessed.

56. Under cross-examination, Ms Hughes agreed that she had no qualifications or experience with regard to scientific matters or marine areas. It was put to her that she would therefore be reliant on the panel member with that experience, Mr Witt. In response, Ms Hughes replied that she would also rely on Ms Scott’s experience because of her role as previous Project Officer. She explained that the statement of duties had been prepared by Ms Scott based upon the requirement that the previous process had shown would be desirable for the position.

57. Ms Hughes was questioned as to whether she was aware that Dr Edyvane had written to Minister Judy Jackson MHA with regard to the RPDC: Ms Hughes replied no and explained that Ministerials are handled by the agency.

58. Ms Hughes was cross-examined with respect to the applications of the three candidates who were interviewed (Exhibit C14). She was asked about the relevance of experience in establishing marine park areas. Ms Hughes agreed that such experience would be relevant in satisfying criteria six (a knowledge and understanding of the Tasmanian Marine Protected Area Strategy, and the principles and objectives of marine protected areas, particularly as they relate to Tasmania). She agreed that the successful candidate, Mr "M’s" experience in Tasmania had been highlighted as giving him an advantage. It was put to her that none of the interviewed candidates had experience in planning and making recommendations to government with regard to marine protected areas. Whilst Ms Hughes was not in a position to confirm whether this was the case, she replied if that was the case, making recommendations to government was not the most important part of the job as the RPDC does this. When it was put to her that the only candidate who had such relevant experience was the Complainant, Ms Hughes replied that she did not deny that she had that experience.

59. Ms Hughes was then asked specific questions about whether Dr Edyvane had satisfied the selection criteria. Ms Hughes was somewhat uncomfortable going through this exercise on the grounds that this was out of context of the selection process where the respective applications are compared and she was not sure whether she could accurately relate the reasoning behind the decision-making, some three years later. She accepted that Dr Edyvane would have satisfied selection criteria one, two, three, five and six and seven, as well as the desirable requirement of having a postgraduate qualification. She accordingly agreed that the reason that she was unsuccessful related to criteria four, and the selection panel’s view that she had a lesser capacity to consult. It was put to Ms Hughes that Dr Edyvane’s application had set out her experience in consultation both in South Australia and Tasmania. Whilst Ms Hughes accepted that Dr Edyvane’s application did refer to some relevant consultation experience, she told the Tribunal that she was lacking in this criteria vis a vis the other applicants.

60. Ms Hughes was asked whether the other panel member, Mr Witt had disclosed to the other selection panel members that he had previously worked with Dr Edyvane, and that the successful applicant, "M" had previously worked directly under him. Ms Hughes could not recall whether this had been discussed but accepted that this could have been relevant. She accepted that she could not recall anything specific beyond what was written in the selection panel Report.

61. In re-examination, Mr Taylor sought to clarify exactly what was being sought in respect of criteria six: Ms Hughes replied that it was to establish that the candidates knew that there was a strategy for setting up Marine Park Areas and had an understanding of that strategy. She agreed that the selection panel was not looking for any intimate understanding of every aspect of it.

62. Ms Hughes gave her evidence in an honest and forthright manner and the Tribunal accepts her evidence regarding the process of deliberations of the selection panel for the position of Project Officer (Marine) and with regard to the matters that where and where not taken into account.

Ms Pamela Scott

63. Ms Scott is Senior Project Officer with the RPDC. She told the Tribunal that she has had considerable experience with selection panels and has undertaken training into the process, how to conduct an interview, what needs to be taken into account etc. She explained the process that she follows when asked to sit on a panel: she reads through all of the applications then refers back to the statement of duties and main selection criteria then goes through each individual application and ranks each applicant for each of the selection criteria from 1-10. She then draws up a matrix and totals up the rankings. She told the Tribunal that she has found that this delivers a good indication of suitable applicants for interview. She will then reread the applications of those applicants that meet the selection criteria to a high degree and those that are very close, to check that her rankings are consistent.

64. Ms Scott was asked whether it might be necessary to cull applications even if applicants meet the criteria. She confirmed that this could be the case, and said that in this case, at least half of the applicant’s had met the criteria to a satisfactory level but not all of these were interviewed.

65. Ms Scott could recall commonality in the short-lists each of the panel members had prepared. She told the Tribunal that the four that they had selected for interview stood out. She denied that anything else was relied on in assessing the applications and asserted that it would be most improper if other documents were referred to or used. She gave evidence that the applications were generally of a high standard and that they had received a lot of interest from applicants around Australia for this position. She gave evidence that there was no prioritisation of the selection criteria – they were all equally weighted and all were important to the duties and role of this Project Officer (Marine).

66. In response to a question as to why Dr Edyvane was not offered an interview, Ms Scott responded that it was felt that whilst she met the election criteria to a satisfactory degree and in some instances, to a high degree, there were some selection criteria, particularly with regard to the consultative aspects of the position, where there were other applicants who had addressed that criteria more adequately. She confirmed that the decision not to offer Dr Edyvane an interview was a unanimous one. She also confirmed that the selection panel Report (Exhibit R3) accurately reflected the selection panel’s discussions. She was asked about the specific comments in that report in respect of both the Complainant and also the successful candidate Mr "M" and she replied that she remained satisfied that the comments were a fair and accurate assessment of these candidates. She gave evidence that the decision to appoint Mr "M" to the position had been unanimous.

67. With regard to criterion six, Ms Scott was asked whether it was necessary to demonstrate experience and qualification in planning and the project side of marine protection in order to satisfy this criterion: Ms Scott replied that that was not what the selection criteria were looking for, rather knowledge and understanding of the strategy.

68. Ms Scott was asked whether she knew Dr Edyvane before the selection panel deliberations and she replied that she did not. She had no recollection of seeing any of the media coverage about Dr Edyvane’s work. She reiterated that the panel had not considered any other material when considering her application or had spoken to or been approached by anyone in respect of her application, and expressly rejected having had any contact from Mr Peter Bosworth, Mr Alex Schaap or Professor Colin Buxton. When asked as to her view as to how Dr Edyvane’s application was handled by the selection panel, Ms Scott told the Tribunal that she believed it to be a fair and equitable process which had followed the correct procedures.

69. Under cross-examination Ms Scott agreed that she had no scientific expertise or qualifications. However, when it was put to her that she would have therefore relied on Mr Witt for his comment and assessment, she disagreed on the basis that the selection criteria were not focused on scientific matters and other non-scientific members could also assess candidates against the criteria. She told the Tribunal that she believed she had the experience to read and assess the applications as she has had extensive experience in analysis of written material and that the panel was not relying on Mr Witt for those skills. When it was put to her that a person who had both knowledge and experience would be better qualified than a person who just had experience, Mr Scott responded that she did not think that was what the selection criteria were asking.

70. When asked to explain why it was that the panel concluded that the Complainant’s application was lacking with regard to consultation experience relevant to criteria four, Ms Scott told the Tribunal that the other applicants were better able to demonstrate what they had actually done in their consultation roles and what it had involved. In particular, she gave evidence that the other applicants who had scored more highly on this criteria, were able to demonstrate what was involved rather than just list their experience. Overall, her assessment of the Complainant’s application in this regard was that whilst it displayed significant experience in relation to this criterion, it did not give her any clear indication or confidence as to what Dr Edyvane would do if she was successful for the position in achieving those major duties of the role.

71. When questioned as to whether she recalled Mr Witt making any comments regarding the Complainant having an association with the Greens, Ms Scott replied that this was not discussed as far as she could recall and further, that she thinks she would recall if this was discussed because it would be unusual for a selection panel to raise political issues.

72. When asked whether Mr Witt had disclosed he had previously worked with Dr Edyvane, Ms Scott could not recall. She did believe, however, that he had disclosed that he had previously worked with the successful applicant, Mr "M". When asked about media coverage of Dr Edyvane’s work in connection with the Giant Kelp Report, Ms Scott could not recall and told the Tribunal that she had not heard of Dr Edyvane before the application process.

73. The Tribunal found Ms Scott to be an open and credible witness who was clearly trying to provide to the Tribunal as accurate an account of the selection panel process as she could recall. The Tribunal accepts her evidence.

Dennis Witt

74. Mr Witt is currently manager in the Department of the Exhaust Management and Conservation Division. He told the Tribunal that he had been involved with dozens of selection panels in the course of his career in the public service. He gave evidence that he had been approached by Ms Scott from the RPDC to participate in this selection panel and he had agreed. The position was advertised in late 2004 and he was subsequently provided with copies of the applications which he assessed and scored against the selection criteria. He told the Tribunal that there was agreement between panel members at a meeting held for the purposes of short-listing candidates, with a total of four selected for interview. He also agreed that it was possible that some other applicants may have satisfied all selection criteria but not to as high a degree as those selected for interview. He thought this was probably the case in respect of Dr Edyvane but could not be sure. He also confirmed that there was no ranking of the selection criteria.

75. Mr Witt was asked about his relationship with the successful candidate, Mr "M". He told that Tribunal that he was known to him as Mr Witt had been Branch Manger of Fisheries at a time when Mr Witt was the Manager of Scale fish fisheries and they had regular contact at that time. When asked to what degree of influence this relationship had on the selection process, Mr Witt responded that it had none at all. He could not recall mentioning this past association to other panel members; and explained that he would not ordinarily do so because he did not think that the selection panel should be considering other things.

76. Mr Witt was asked about the Selection Panel Report (Exhibit R3); when asked to expand on the comments in respect of Dr Edyvane he stated that it was intended to convey that she was not ranked as highly in relation to certain criteria, in particular, with regard to the capacity to undertake consultation. Mr Witt told the Tribunal that he considered her application did not provide high level evidence about this. In his view, the balance of the comments about Dr Edyvane in that Report was positive. Mr Witt gave evidence to the Tribunal that the successful applicant, Mr "M", had satisfied criteria four, five and six to a very high standard. When asked what had been taken into account by the panel in reaching its decision, Mr Witt stated the written application, the candidate’s answers to question at interview and the referee reports.

77. In response to a specific question as to whether he had received any contact during the selection process in relation to Dr Edyvane’s application, he replied yes, that he had received an email from Neville Barrett from TAFI (the Tasmanian Aquaculture and Fisheries Institute) requesting that Karen Edyvane not be appointed as TAFI cannot work with her. Mr Witt could not recall if he received this email before or after the interviews were conducted but was clear in his response as to what he had done about it: he told the Tribunal that he had deleted it immediately and had ignored it and that it had had no influence on the selection process.

78. Mr Witt was also asked about his prior association with Dr Edyvane. He confirmed that they had met in various contexts and that, for a short while, he had been on a committee with which she was involved and had attending meetings and could recall one meeting where they were both present. However, he had not discussed this contact with other panel members as he did not think it would be relevant and he thought it would have been improper to discuss other matters.

79. He also told the Tribunal that he had been asked to review a background report of which Dr Edyvane was the principal author, and which was subsequently to form the basis of the marine strategy. When asked if he had formed any view from reading that report with regard to her political persuasion he answered none at all. He had confirmed that he had been aware of her work into giant kelp in Tasmanian because he had been approached to help fund publication of the ensuing Report. He denied that he had drawn any conclusions about her political persuasion from his contact with the Giant Kelp Report. When shown the bundle of media clippings and related documents, (Exhibits C6, C7 and C8) he told the Tribunal that he may have previously seen one or two of the media items but was certain that these had not informed his deliberations in any way. When asked whether he had spoken to anyone in relation to Dr Edyvane’s application, he gave evidence that he had not, expressly ruling out any contact with either Mr Peter Bosworth or Mr Alex Schaap in respect of the matter. When asked as to his assessment of how Dr Edyvane’s application was assessed, Mr Witt answered ‘entirely properly’.

80. In cross-examination, Mr Witt was asked about the objective of the position of Project Officer (Marine) and he confirmed that it was to operate in accordance with the strategy, and put together a document that the RPDC could use in making recommendation to government with respect to the creation of marine park areas. On the issue of relevance of prior experience working in the marine parks area, Mr Witt told the Tribunal that such experience could be relevant, but that the issue revolves around the selection criteria: experience can be used to demonstrate skills but only via the selection criteria. He emphasised that the selection criteria focus on skills to do certain things and that can be demonstrated in various ways. Mr Witt explained that skills do not necessarily have to relate to the particular thing involved in a position (e.g. marine parks); they can be demonstrated from different areas.

81. When questioned about the selection panel’s view with regard to Dr Edyvane’s perceived lack of consultation skills, Mr Witt told the Tribunal that other applicants had satisfied this criterion to a higher degree. When it was put to him that the successful applicant, Mr "M", lacked consultation experience, Mr Witt replied that he had had a wealth of experience in exercising the same set of skills, and these were assessed as high level skills.

82. Mr Witt was also asked under cross-examination about whether Dr Edyvane’s giant kelp research had been discussed at the short-listing meeting. He responded that it was his recollection that it was not discussed and nor was her work with the marine protection strategy or tensions between her and the fishing industry. It was put to Mr Witt that he must have been aware of the controversy with respect to the Giant Kelp Report but his evidence to the Tribunal was that this was not a big issue for him at the time and he was only aware of the controversy in a peripheral way. In response to questions, he told the Tribunal that he had been aware of the application to list giant kelp as vulnerable but he had no direct involvement and was not aware of Dr Edyvane’s letter to the Minister.

83. Finally, when Mr Witt was asked, would you say that the only reason that Dr Edyvane was not selected for interview was her lack of consultation skills, Mr Witt preferred to state it in terms that over all the criteria, she was not in the top group. Whilst agreeing that this criterion about consultation was the one that was referred to in the selection report, he told the Tribunal that every selection criterion was discussed and there may have been other reasons not mentioned, such as ability to work in a small team. When asked whether consideration had been given to adding Dr Edyvane to the short-list, Mr Witt had replied no, given that the others were very strong candidates, and there was no need to go further down the list.

84. The Tribunal found Mr Witt to be a credible and forthright witness and the Tribunal accepts his account of the events involved in the selection panel’s process of evaluation of applications and short-listing of candidates.

THE LEGISLATION

85. Section 14 of the Act provides as follows:

"14. Direct discrimination

(1) Discrimination to which this Act applies is direct or indirect discrimination on the grounds of any prescribed attribute.

(2) Direct discrimination takes place if a person treats another person on the basis of any prescribed attribute, imputed prescribed attribute or a characteristic imputed to that attribute less favourably than a person without that attribute or characteristic.

(3) For direct discrimination to take place, it is not necessary -

(a) that the prescribed attribute be the sole or dominant ground for the unfavourable treatment; or
(b) that the person who discriminates regards the treatment as unfavourable; or
(c) that the person who discriminates has any particular motive in discriminating."

86. Relevant attributes are set out in section 16 of the Act, and in this case, the attributes alleged to be in issue were political belief or affiliation (section 16(m)), political activity, (section 16(n)), association with a person who has, or is believed to have, a prescribed attribute (section 16(s)). (As noted above, the attribute of gender (section 16(e)), raised in the initial complaint, was not pursued at Inquiry.)

86. The Act’s application to areas of activity is spelt out in section 22(1) which includes in paragraph (a) reference to employment. It is well established through many years of equal opportunity legislation in Australia that this type of provision encompasses recruitment and the application process and this was not in dispute before the Tribunal (see for example, Lowe v Launceston County Club Casino TASADT 16 (2003), for other Australian refs see text pp48-51)

ISSUE TO BE DECIDED

88. The issue before the Tribunal in this case is whether Dr Edyvane was treated less favourably during the recruitment process on the basis of political belief or affiliation, political activity, and association with a person who has or is believed to have a prescribed attribute. Central to the determination of this issue is the question of sufficiency of evidence, and the circumstances in which it is appropriate for the Tribunal to draw inferences from the available evidence.

SUBMISSIONS TO THE TRIBUNAL

Submissions for the Complainant

89. In summing up the Complainant’s case, MS Mills submitted that on review of all the evidence before the Tribunal, it would be satisfied that the Complainant firstly, possessed the alleged attributes of holding political belief as a conservationist, especially in relation to giant kelp; secondly, undertook political activity in lobbying government, writing letters, criticising the government regarding its lack of action in the conservation of protection of giant kelp in the media both in the print media and in interviews; and thirdly, was associated in the media with Mr Nick McKim MHA and Senator Bob Brown of the Greens Party who were also very critical of the government and supportive of the Complainant’s work on giant kelp. Further, it was submitted that the Tribunal would be satisfied that the selection panel members of the Respondent Department were all aware of the debate or controversy in respect of giant kelp through the media and at least two of those members, Ms Pamela Scott and Mr Dennis Witt, knew of Dr Karen Edyvane’s research and her involvement, at least to some extent, in that debate in the media. Ms Mills submitted that the panel’s decision not to grant an interview amounted to less favourable treatment in respect of the Complainant, and when viewed objectively can only mean that on the balance of probabilities it occurred or was influenced by the Complainant’s political belief or political activity or perceived affiliation with members of the Greens Party or any one of a number of those matters together.

90. With regard to the interpretation of section 14 of the Act, it was submitted in light of the qualifications contained in section 14(3) that it is sufficient if the Complainant proves that the discriminatory conduct was one of a number of factors in the conduct or that it influenced to some extent, even to a minor degree, the causing of the discriminatory conduct. It was submitted that putting it in a different way, the Tribunal needs to be satisfied that on the whole of the evidence, that the discrimination did not form any part of the decision of the panel not to give the Complainant an interview.

91. On the issue of onus of proof, it was acknowledged that the Complainant bore the onus, on the balance of probabilities, but subject to the qualifications in Briginshaw v Briginshaw (1938) 60 CLR at 362, namely the need to take into account the consequences of an adverse finding, in determining whether it has been proved to the reasonable satisfaction of the Tribunal. It was suggested that in this case, the allegations involved were not in the category of utmost seriousness.

92. On the issue of relevant attributes it was submitted that there are no Tasmanian cases dealing with political belief or political association (s16 (m), and (n)). However, drawing on the authority of the West Australian case Evershed v The City of Geraldton to (1995) EOC at 92-745, it was submitted that the Complainant’s activities of publicly criticising the government for its failure to conserve giant kelp and to respond to her report, writing letters to Ministers, and calling for the giant kelp to be listed as vulnerable under the Threatened Species Act, and then lodging an appeal when that decision was refused, can all be characterised as political activity.

93. Further, it was submitted that there was evidence of the Complainant holding a political belief in this case, that is, one of conservation, as evidenced by the views espoused by the Complainant in the media and in her letters to government Ministers, and indeed, in the research report, the findings themselves. With regard to paragraph (s) and the issue of having an association with a person who holds these attributes, or is believed to have any of these attributes, it was submitted that extensive media reports tended to make it clear that Mr Nick McKim and Senator Bob Brown from the Greens Party held beliefs of conservation but also strongly supported the Complainant’s research in the media and were also critical of the government. With regard to these matters, it was asserted by counsel for the Complainant that there had been no challenge by the Respondent as to whether the Complainant’s activity amounts to any of these various categories in s16.

94. Turning to the evaluative process of assessing evidence, Ms Mills noted that in such cases there is often no direct evidence. She submitted that the whole of the evidence should be considered and in the absence of direct evidence on causation, inferences can be drawn from the primary facts. In essence, the Tribunal was asked to draw an inference based on Dr Edyvane’s difficulties with Mr Peter Bosworth, the media coverage concerning the giant kelp controversy, and the perceived influence of Mr Alex Schaap on the selection process.

95. In support of the proposition that the Tribunal could in an appropriate case draw inferences to reach a conclusion as to the existence of discrimination, Ms Mills relied on the case of Evershed v The City of Geraldton (1995) EOC at 92-745 at page 78,564 where the Tribunal said:

"in the absence of direct evidence, the complainant could use inferences drawn from the primary facts to establish the causal link between a person’s characteristic and the alleged discrimination so that it appeared that the discriminatory conduct occurred by reason of that characteristic."

96. She also sought to draw support from the West Australian Equal Opportunity Tribunal decision in Alone v The State Housing Commission Homewest (1992) EOC 92-392, at page 78,789 to 78,790, where the Tribunal stated:

"In considering the question of whether the complainant was treated less favourably than a non-aboriginal would have been in similar circumstances the Tribunal noted that it was unusual for there to be direct evidence of racial discrimination", … "Of its very nature that is ordinarily something which is manifested indirectly and proved (where it exists) by evidence normally called circumstantial. The decision of the High Court in Chamberlain v The Queen (1984) 153 CLR 521 at 536 establishes that a Tribunal of fact should decide whether to accept the evidence of the particular fact not by considering the evidence directly to that fact in isolation but in light of the whole of the evidence and can draw an inference from a combination of facts, none of which viewed alone would support that inference".

97. The Tribunal continued: "Nor is it necessary for a fact itself to be proved to the requisite degree before it may be used as a basis for an inference adverse to a party"…. "It is important to appreciate, however, that discrimination cannot be inferred when more probable and innocent explanations are open on the evidence": Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147, Erbs v Overseas Corporation Pty Ltd (1986) EOC 92-181 and Chief General Manager, Department of Health v Arumugam (1987) EOC 92-195.

98. Ms Mills then went on to make detailed submissions regarding the evidence. She submitted that it can be inferred from all the evidence that the panel knew of Karen Edyvane’s political belief of conservation views and it can also be inferred that they were, at least Ms Pamela Scott and Mr Dennis Witt, aware of her political activity calling on the government to conserve and protect giant kelp. Further, it was submitted that it can be inferred that at least Ms Pamela Scott and Mr Dennis Witt were aware of the Greens support for the conservation of giant kelp and the opposition of the fishing industry.

99. Ms Mills called for the Tribunal to comparatively evaluate Dr Edyvane’s application as against those that had been short-listed for interview, claiming that on any objective view, Dr Edyvane satisfied the criterion with regard to consultation skills.

100. Ms Mills concluded by asserting that the evidence compels a finding that it was not a lack of consultation skills and if that is put aside then one has to ask what was the reason that she was not granted an interview. She submitted that the only other evidence is that the reason was her political beliefs of conservation, alternatively her political activity in public advocating for the conservation of giant kelp, or alternatively her association in the media with Nick McKim and Senator Bob Brown. Ms Mills contended that all or at least one of those matters influenced the decision not to interview her.

101. Ms Mills also addressed the Tribunal on the issue of the Respondent Department’s liability under s 104 of the Act and also under general principles of vicarious liability and in addition, made submissions with regard to the need for a significant award of compensation in the event that the Complaint was upheld.

Submissions for the Respondent

102. It was submitted on behalf of the Respondent Department that it denies the allegations completely and accordingly has defended the complaint on that basis. The Department’s case is that the selection panel considered the applications fairly and impartially and Dr Edyvane was not offered an interview on the basis that she did not satisfy the selection criteria to the same extent as those that were ultimately offered an interview. The Department case is that no other material, no other information and no other considerations were taken into account by the selection panel when it considered Dr Edyvane’s application and those of all the applicants generally. Mr Taylor submitted that the short-list that was ultimately arrived at was a result of a balanced and fair process and, indeed, those candidates that were chosen for interview were ones - were those that the selection panel thought would best carry out the major duties of the position.

103. Mr Taylor was content to endorse the submissions of counsel of the Complainant with regard to the interpretation of s14 of the Act, specifically in relation to subsection (3a) that the prescribed attribute need not be the sole or dominant ground for the unfavourable treatment.

104. On the issue of onus of proof and what must be established Mr Taylor referred the Tribunal to the judgment of Justice Dixon as he then was, in the Briginshaw case:

"The truth is that when the law requires the proof of any fact the Tribunal must deal in actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality."

105. Further, with respect to the proposition that the "the gravity of consequences flowing from finding of fact is one of the factors affecting whether the facts has been proved to a reasonable degree", Mr Taylor submitted that if the Tribunal accepts the Complainant’s case it necessarily accepts that the selection panel has breached the principles of the State Service Code of Conduct which would have significant consequences for the panel members.

106. It was Mr Taylor’s submission that not only is there a lack of evidence from which that inference can be drawn, that being the inference the Complainant urges upon the Tribunal, but that there is, indeed, evidence to the contrary. Drawing on the evidence before the Tribunal, he submitted that the Tribunal has heard about the methodology of individual members and then how the selection panel group deliberated together when it was considering the applications and that this was a careful, balanced and impartial process.

107. Mr Taylor submitted that Ms Carol Hughes and Ms Pamela Scott both indicated that they did not know the Complainant before the selection process was undertaken or at least did not know her in anything but a very, very peripheral manner. They could not recall seeing the media coverage of the giant kelp debates to any great degree. They did not speak to Mr Alex Shaap, Mr Peter Bosworth or Professor Buxton with regards to Dr Edyvane’s application.

108. Mr Taylor acknowledged that Mr Dennis Witt did have a prior association with Dr Edyvane, that being on the Marine and Marine Industries Council. However, he submitted that Mr Witt’s level of association also was significantly low, not to the extent alleged by the Complainant, and he had no lasting conclusions about Dr Edyvane arising from his level of involvement with her. Further, Mr Taylor highlighted as important the fact that Mr Witt had told the Tribunal that it did not influence his decision-making in anyway with regard to her application for the position. Indeed, he had given evidence that in relation to the email from Neville Barrett he immediately deleted, there was no response to it, he completely ignored it and paid it no attention whatsoever. Mr Taylor noted that Mr Witt had also acknowledged a prior working relationship with "M" and revealed none of these matters to the other selection panel members, and couldn’t recall any mention of it in their deliberations. And the reason for that he says was "because it was not right to introduce gossip into this deliberations and it was irrelevant to consider it."

109. Mr Taylor concluded his submission by stating that it was open to the Tribunal to of course conclude that the decision may have been a bad one on the merits of the applications and that another selection panel may indeed have concluded differently. He accepted that Dr Edyvane certainly ranked highly concerning the technical selection criteria for this position but it was his submission that the Tribunal cannot make the quantum leap the Complainant urges it to, as it would simply be an unsafe finding.

TRIBUNAL'S DECISION

110. In deciding whether the allegation of direct discrimination has been made out in this case, the Tribunal has had regard to the terms of the legislation, the evidence of the parties, counsels’ submissions and related case law. Many of the relevant facts in this case were not in dispute before the Tribunal and can be taken as found, including Dr Edyvane’s employment history inter alia with the Department, that she had applied for the position Project Officer (Marine) and that she had not been short-listed or given an interview for this position. For the record, the Statement of Agreed Facts (Exhibit C2) provided were as follows:

• On 5 October 2003 the final Kelp Report was released unofficially by Mr. Nick McKim, MHA Greens Party.
• On 1 December 2003 the Government (Hon. Bryan Green, MHA) formally released to the public the final Kelp Report.
• Senator Bob Brown (Greens Party) launched the national meeting of the Australian Marine Science Association in Hobart on 6 July 2004 speaking on increasing research funding and opportunities for marine science.
• The TSSAC and the Minister for Environment and Planning formally rejected the nomination to list the giant kelp as a threatened species on 10 September 2004.
• The Complainant lodged an appeal to the RMPAT against the failure to list giant kelp as a threatened species on 6 October 2004.
• On 23 February 2005 the Complainant withdrew her appeal to RMPAT.
• That the curriculum vitae of the Complainant was submitted to the Respondent in January 2005.
• On 4 January 2005 the Complainant applied for the position of Project Officer with the Respondent.
• That the Complainant was not offered an interview for that position.

111. In addition to this list of agreed facts which can also be taken as found, other facts that are not in contention and which have been corroborated by documentary evidence before the Tribunal relate to the media coverage of the giant kelp issue and Dr Edyvane’s role in this, including participation in public forums with a conservation focus with Green politicians (Exhibits C6-C8), as well as her letter writing activities to state and federal politicians (Exhibits C9-C10).

112. The points of conflict in the evidence in this case centre on the basis of the selection panel’s decision, in particular, what they knew and had taken into account in the process of assessing the applications and short-listing of candidates for interview. Thus, the central issue in this case is how the given facts should be construed and whether it is possible for an inference of discriminatory conduct to be drawn from the fact that the Complainant was a well qualified applicant but was not included amongst the short-list of candidates to be interviewed.

113. As counsel for both parties have acknowledged, the Complainant bears the onus of proof, according to the civil standard, having regard to the approach established in Briginshaw v Briginshaw (1939) 60 CLR 336: Rogers v Hanusiewicz Medical Pty Ltd [2004] TASADT 14. It was also agreed by the parties’ counsel that, by virtue of s14(3), in order to establish discrimination, it is sufficient if the Tribunal is satisfied that it was a factor in the decision, and that there is no need to show motive on the part of the Respondent.

SUMMING UP THE TRIBUNAL'S FINDINGS OF THE EVIDENCE

114. The Tribunal has found all the witnesses that it has heard from in this case, both for the Complaint and the Respondent, to be credible witnesses who gave their evidence truthfully and as noted above, there is very little that is in dispute with respect to the primary evidence. In these circumstances, it is indeed possible for the Tribunal to be in a position where it accepts the direct evidence of all the witnesses and the case turns entirely on the issue of what inferences can be drawn from the primary facts as found.

115. Mr Lynch and Dr Lockwood, who gave evidence strongly in support of the Complainant’s qualifications and experience and general suitability for the position of Project Officer (Marine), conceded they had not seen the other applications and were therefore not in a position to assess the extent to which those others could satisfy the selection criteria. There was also general acceptance by these witnesses of the need for culling of applications by a selection panel, and that only one person can be ultimately successful.

116. The Tribunal notes that there are some minor inconsistencies in the evidence of the witnesses for the Respondent – for example, whether selection panel member Mr Dennis Witt had disclosed his prior work association with the successful applicant. Such discrepancies in detail are not surprising given the effluxion of time since the selection panel met to deliberate on these applications, and the Tribunal does not attach significance to this. However, what came through clearly from Mr Witt’s evidence was his strong view that information external to the application is not relevant, and indeed, it would be improper for the selection panel to take this into account. The Tribunal has accepted his evidence in this regard.

117. Counsel for the Complainant had sought to highlight the consultation criterion in the selection criteria for the position on which Dr Edyvane had been scored behind a number of the other candidates. Ms Mills had argued that a comparative evaluation of the applications of the short-listed candidates and that of the Complainant indicated that she had in fact excelled on this criterion and exceeded the other candidates. The Tribunal takes the view, for reasons which are elaborated more fully below, that this type of comparative evaluation going to the merits of the various candidates is probably beyond its scope for the purpose of the current Inquiry. In any event, the Tribunal notes the evidence of Ms Scott, who along with the other selection panel members, sought to justify the panel’s reasoning and final conclusion about the Complainant. She explained that other applicants were able to demonstrate what was involved as opposed to merely listing their experience and achievements, giving rise to greater confidence that that would be able to successfully fulfil this aspect of the role.

118. In cross-examination, counsel for the Complainant had sought to establish what level of awareness the selection panel members had of Dr Edyvane’s work in respect of giant kelp, her media exposure, lobbying of politicians etc. Despite some persistent questioning around these issues, there was nothing in the evidence of any of the key witnesses that indicated such awareness. Both Ms Hughes and Ms Scott accepted that they may have seen some earlier media overage of giant kelp issues, including possibly mention of her name, however, this had not registered and they had not drawn a connection to Dr Edyvane’s application. Mr Witt had indicated in his evidence that he had been aware of her work with giant kelp, and that he may have seen some of the media items, but he had drawn no conclusions from this about the Complainant’s political persuasions. Further, whilst he had, quite candidly, informed the Tribunal that he had received an email communication from a person at TAFI, expressed in negative terms about the Complainant, he had been very clear in his evidence, indeed, ‘absolutely certain’, that he had not been influenced by this communication and he had not advised the other selection panel members about it. Importantly, they had all denied that any of these matters had been discussed in the course of the selection panel’s consideration of the Complainant’s application, or in any way influenced their deliberations. Each of the selection panel members had given unequivocal evidence that the only material considered by the selection panel when deciding upon the short-list were the applications of the candidates and they had all denied that there had been any communications with other persons about this process, in particular, Mr Peter Bosworth, Mr Alex Schaap or Professor Colin Buxton, who, on the Complainant’s evidence were the primary drivers of the campaign against her. Further, it was clear from the evidence of Ms Hughes who had principally written the report in her capacity as Chair of the selection panel, that the reference in the selection panel Report (Exhibits R3) to Dr Edyvane’s conservation background was seen as a positive. For the record, it was useful to note exactly how that appears in the summary of Dr Edyvane:

"Dr Edyvane’s application discloses an impressive ability to research and advise on a variety of marine issues, with a strong focus on conservation and the formulation of policy advice. Whilst she demonstrates her capacity to undertake liaison with a variety of different groups, and supervision on numerous projects, the capacity to undertake the consultation required by the position is not evidenced to a satisfactory degree. Although Dr Edyvane’s skills and experience are relevant to this position, they do not satisfy the requirements of the selection criteria to the same extent as the candidates chosen for interview."

119. The documentary evidence adduced before the Tribunal included evidence of the Complainant’s media exposure (Exhibits C6-C8). These items also bore out her claim that she was often portrayed by the media as a supporter of environmental issues and on occasions, aligned with members of the Greens party, both state and federal. That evidence was also relevant in substantiating her evidence of steps she had taken to highlight issues associated with giant kelp also amongst various politicians (Exhibits C9-C10). Notwithstanding, there is nothing in this evidence to directly support the allegation of discrimination against the Respondent.

120. Importantly, the Tribunal’s role is not to determine whether the selection panel made a ‘good’ or ‘correct’ decision, short-listing the best candidates for the position, or ultimately appointing the most suitable candidate. Rather, it is to determine whether the decision not to include Dr Edyvane in that short-list was in any way influenced on the basis of any of the identified attributes, such that the Tribunal can be satisfied that, in the absence of direct evidence, an inference can be drawn that the Complainant was subject to unfavourable treatment within the meaning of the Act. In order to undertake this task it is necessary to outline the relevant principles that apply to the drawing of inferences in such circumstances.

121. In addition to the Evershed v The City of Geraldton to (1995) EOC at 92-745 and Alone v The State Housing Commission Homewest (1992) EOC 92-392 cases cited by counsel for the Complainant, there are a number of authorities in support of the proposition that in the absence of direct evidence, the Tribunal can draw inferences from the primary facts: Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147; Gielis v Sutherland District Trade Union Club (No 1) (1993) EOC 92-484.

122. What emerges from the cases cited by counsel for the Complainant, is that when faced with a situation where a Tribunal is called upon to draw an inference, in the absence of direct evidence of discrimination, the Tribunal should look at the evidence in a holistic way, rather than facts in isolation (Alone v The State Housing Commission Homewest (1992) EOC 92-392); Chamberlain v The Queen (1984) 153 CLR 521 at 536). The case of Alone v The State Housing Commission Homewest (1992) EOC 92-392) was also relied on to suggest that it is not necessary for a fact itself to be proved to the requisite degree before it may be used as a basis for an inference adverse to a party. In that case, after referring to case law on this issue, the Tribunal stated at 78,788:

"Nonetheless, such pronouncements do not detract from the fundamental principles that the onus in on the Complainant and that inference can be drawn (whether more easily or not) only where they are properly open on the evidence adduced."

123. Indeed, counsel for the Complainant did, concede through her citing of this decision, and others in support, that ‘discrimination cannot be inferred where ‘more probable and innocent explanations are open on the evidence.’ (See also Gielis v Sutherland District Trade Union Club (No 1) (1993) EOC 92-484.)

124. Mr Taylor on behalf of the Respondent pointed to the absence of evidence to support an inference that there is some operative reason for the selection panel’s decision that gives rise to the contravention of the Act. Indeed, he submitted, that not only is there a lack of evidence from which such an inference could be drawn, it was his submission that there was evidence to the contrary. He submitted that in light of the evidence from the Chair and members of the selection panel, there was a sound basis from which the Tribunal can form a judgment with regard to the reasons for the short-listing. It was submitted that the evidence in this case does not support the inference of a proscribed reason, as argued for by the Complainant.

125. The case law on this topic cautions about the dangers of drawing inferences in the absence of facts to substantiate them. In particular, note should be taken of the case of Greater Dandenong Council v AMSU 112 Federal Court Reports 232, in which Justice Finkelstein had stated as follows:

"Whether an inference can be drawn from the facts is a question of law: Hope v Bathurst City Council (1980) 144 CLR 1 at 8-9. If the inference was not open then there is a appeallable error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 356. If the inference is one about which minds may differ, there will be no error." (para 214)

126. The Tribunal accepts that Dr Edyvane’s perception of discriminatory treatment on the basis of her political beliefs or affiliations, and or political activities is genuinely and sincerely held and has no doubt been influenced by the negative reactions and treatment she has received in her dealings with some departmental personnel over past years, as recounted in her evidence. Her Complaint focussed quite specifically on the fact that she was not offered an interview for the position of Project Officer (Marine) and it was asserted that this amounted to less favourable treatment on grounds of one or more of the specified attributes.

127. The Tribunal finds, having considered the evidence in relation to the treatment of Dr Edyvane by the selection panel in the process of assessing applications and short-listing candidates for interview, that it is impossible to draw the inference argued for on behalf of the Complainant that Dr Edyvane was treated less favourably on the basis of any of these identified attributes. There is, as Mr Taylor submitted, a sound basis from which the Tribunal can form a judgment with regard to the reasons for the short-listing, in particular, that the short-listed candidates in the opinion of the selection panel were the most suitable candidates. In reaching this conclusion the Tribunal has also taken into account the relative separateness and independence of the selection committee, both structurally, but also because of its procedures, as outlined in the evidence of a number of the witnesses of the Respondent, in particular that of the Chair of the selection panel, Ms Hughes.

128. As was acknowledged by a number of the witnesses, it is quite possible for an applicant to meet the selection criteria but not necessarily be short-listed for interview, and there was at least some evidence to suggest that this was what had occurred in this case. The evidence before the Tribunal of the selection panel members, and borne out also by the selection panel Report, relevant details of which were outlined above, was that on the issue of consultations, other candidates had satisfied this criterion to a higher degree than the Complainant. They were also consistent in their evidence that the selection criteria were not ranked in any way and were each of equal importance, contrary to what the Complainant had assumed. Further, each of the selection panel members had given evidence before the Tribunal that the applications for this position of Project Officer (Marine) were of a high standard. Thus, the facts as found in this case regarding the selection panel’s processes overwhelmingly support a rational decision based on the panel members’ individual and collective evaluation of the applications.

129. As noted earlier, it is not the Tribunal’s role to examine the merit of the decision but rather to ascertain whether it was on the basis of a proscribed attribute, amounting to discrimination. The Tribunal notes, however, by way of possible explanation, the difference between skills on the one hand, and experience on the other, which was emphasised by a number of the witnesses for the Respondent, in particular, in the evidence of Mr Witt. In contrast, Dr Edyvane had obviously placed great store on her experience which helps explain her disbelief in not being short-listed for the position. Significantly, unlike the word ‘skills’, the word ‘experience’ does not feature in any of the selection criterion, although it does appear in the heading ‘Knowledge, Skills and Experience (Selection Criteria).’

130. In light of the above, the Tribunal is not satisfied that the treatment complained of (i.e. the failure to short-list the Complainant for an interview) is on the basis of the identified attributes.

131. In reaching this conclusion, the Tribunal has drawn support from the case of Chief General Manager, Department of Health v Arumugam (1987) EOC 92-195. There is some factual similarity with this case, in that the focus was on the decision-making of a selection panel acting on behalf of the Department of Health. The allegation was that the panel had discriminated against one of the applicants, the Complainant Dr Arumugam of Indian origin, on the basis of race. At first instance before the Victorian Equal and Opportunity Board, the Board found that the complainant’s qualification and experience indicated his suitability for the position as a medical superintendent. The Board found that the fact that he was not appointed indicated discrimination on the ground of race. The explanations given by the panel for its failure to employ Dr Arumugam, with regard to his administrative abilities were not accepted by the Board. The Department appealed from this decision to the Supreme Court of Victoria and was successful in having the Board’s decision overturned. Justice Fullagar held that it was not open for the Board to have found that the complainant had been discriminated against on the ground of race as it was not proved that the majority of the selection panel had been motivated by racist considerations.

"…the mere fact that the appointment did not go to the man whom the Board considered to be clearly the better qualified candidate, did not of itself indicate ‘discrimination of some kind’ and therefore I consider that the Board in this case misdirected itself in law."

132. Rather, his Honour found that it was more probable that the selection panel’s decision was based on the perceptions of the complainant’s administrative ability and the fact that the complainant was seen as less articulate and less aggressive than the successful applicant.

133. Justice Fullagar further held that the correctness of the decision of the selection panel was not open to examination, rather, it was the veracity and reliability of the explanation for the decision which was to be considered. The Board had found the explanations given by members of the selection panel to be contradictory and unsatisfactory. Nevertheless, his Honour held that this view could not make out the case for the complainant where the primary facts are readily explicable on a basis other than that of the discrimination as alleged.

134. In many respects, the process of reasoning has been easier in this case given the consistent and credible evidence of the selection panel members. What this decision of Justice Fullagar highlights, however, is that the key issue is not what the Tribunal believes should have been the correct decision by way of appointment, but rather to ascertain the actual reasons for the decision by the selection panel. Where these can be established with some clarity, there is no room to draw inferences that the decision was influenced by discriminatory considerations.

DEPARTMENT OF PRIMARY INDUSTRIES, WATER AND ENVIRONMENT AS RESPONDENT

135. Special attention needs to be given to the DIPWE as a Respondent to this complaint as it an organisation. Both counsel has referred to section 104 of the Act in addition to more general principles of vicarious liability. Pursuant to s104, organisations have certain obligations under the Act, and if they fail to comply with those obligations, an organisation can be found liable for any contravention of the Act committed by any of its members, officers, employees and agents.

136. The section provides as follows:

"104. Obligation of organisations

(1) An organisation is to ensure that –

(a) its members, officers, employees and agents are made aware of the discrimination and prohibited conduct to which this Act relates; and
(b) the terms of an order made under section 89 relating to that organisation are brought to the notice of those of its members, officers, employees and agents whose duties are such that they may engage in conduct of the kind to which the order relates; and
(c) no member, officer, employee or agent of the organisation engages in, repeats or continues such conduct.

(2) An organisation is to take reasonable steps to ensure that no member, officer, employee or agent of the organisation engages in discrimination or prohibited conduct.

(3) An organisation that does not comply with this section is liable for any contravention of this Act committed by any of its members, officers, employees and agents."

137. There are a number of preconditions to the operation of the provision: firstly, that there has been a contravention of the Act by an employee, and secondly, that the organisation has not complied with its obligations under the Act which refers back to subsections 104(1) and (2). In this case, the Tribunal has come to the view that there is no evidence to support any of the allegations against any individual employees of the Respondent. It accordingly follows that there has been no contravention of the Act by any employee of the Respondent Department and therefore section 104 has no application.

TRIBUNAL'S CONCLUSION

138. The Tribunal accepts that Dr Edyvane is genuine in her belief that there has been discrimination against her. She is clearly an intelligent and articulate person, with extensive qualifications and experience and overall, has impressive credentials. The Tribunal’s role is to objectively and even-handedly weigh up the evidence and assess whether the complaint has been made out to the required standard (proof on the basis of balance of probabilities). This was a case where there was no direct evidence of discrimination and the Tribunal was called upon to draw an inference of discrimination from the circumstances. The Tribunal accepts that there was some information available to panel members about the Complainant’s past conservation activities particularly in connection with giant kelp, including from her own application for the position of Project Officer (Marine), but crucially, what is missing is any evidence that these in any way influenced the selection panel’s decision-making process with respect to short-listing, and there is in fact evidence to the contrary.

139. The Tribunal has accepted the clear, consistent and credible evidence from the Chair and members of the selection panel with regard to its decision-making in the assessment of applications and short-listing for the position in question which refuted any suggestion of discrimination on the basis of the alleged attributes. The Tribunal is accordingly satisfied that none of the alleged attributes were relevant in the selection panel’s decision not to offer Dr Edyvane an interview. This is a case where, in the words of the court in the case of Alone v The State Housing Commission Homewest (1992) EOC 92-392 ‘more probable and innocent explanations are open on the evidence.’ The Tribunal has accordingly come to the view that there has been no unfavourable treatment against Dr Edyvane within the meaning of s14 of the Act.

140. For the reasons outlined above, the complaint brought by Dr Karen Edyvane against the Department of Primary Industries, Water and Environment is accordingly dismissed.