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A Canberra tribunal has thrown out the case of an aspiring male firefighter who challenged ACT Fire and Rescue's equal opportunity recruitment policy. The tribunal found that while the policy may give rise to discrimination, it is not unlawful, because the agency had a defence to discrimination under the law. The defence was that the target policy was a "special measure" intended to achieve equality. ACT Fire and Rescue has historically had some of Australia's lowest numbers of women firefighters in its ranks. In the last recruitment, in 2012, no women were found suitable for a job. During its 2016 recruitment campaign, ACT Fire and Rescue adopted a 50/50 gender balance "target" in the new cohort of firefighters. It aimed to give half of the 16 available positions to women. It was not a "hard" target, and women applicants had to pass the same standards as the men. Thirty eight applicants were found suitable. The agency made offers to four female candidates and twelve male candidates. It established a merit list of 22 male candidates. A man purportedly named "Phil Macca" complained to the human rights and discrimination commissioner last year, and the case was heard in the ACT Civil and Administrative Tribunal this year. At first, he called for the ACT Fire and Rescue to "return to merit-based recruitment." He also sought a refund of the cost of his working with vulnerable persons check, and damages. However, the man could not be identified. The agency could not establish that he had applied for the 2016 recruitment round, or been unsuccessful. To consider his complaint, the tribunal assumed he was male and an unsuccessful candidate. There was no oral hearing to his complaint, and the case was heard "on the papers". The man claimed male candidates were treated unfavourably in the 2016 campaign because the target gave an unfair advantage to those women who made the cut. This unbalanced chance of being successful amounted, the applicant submits, to the "unfavourable treatment" of the men by reason of their sex. The man contended that "equal opportunity" under the law meant treating all applicants the same. He claimed the purpose of the target was not equal opportunity, which he argued already existed, but "politics". In its arguments, ACT Fire and Rescue did not suggest that the policy was not capable of discriminating. But it said that even if the policy did potentially give rise to a form of direct discrimination, it is not unlawful because it was a "special measure intended to achieve equality". It said "equal opportunity" called for a broader definition of equality, which must allow for processes and procedures that "address underlying substantive inequalities that persist despite formal equality." Senior member Heidi Robinson agreed that the law allowed for a definition of equality in the law that "permits processes to remove or address disadvantages or barriers" to women entering a profession. SIn her conclusion, she said the tribunal's role was not to determine whether the policy was good or bad or effective, but whether it was a "special measure" under discrimination laws. She said she was satisfied that the agency head believed the target would achieve its goal of enhancing equal opportunity for women. She was also satisfied that a purpose of the target was to ensure women have substantively equal opportunities. Ms Robinson said that whatever the merits of the process or unfavourable effects on the man, they are special measures and therefore not unlawful.

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