In paragraph 7 of his affidavit filed in the matter, the analyst, Mr Semple swore that: 7. I was given terms of reference by the Council and my consultation proceeded on the basis of the terms of reference. The terms of reference were clear. I was not instructed to work towards an outcome that had been pre-determined in any way. Mr Semple proceeded with his review and prepared his finding for the Council in the form of the Semple Report was approved and accepted by the Council on . The Report summarised fourteen specific recommendations and proposals in Chapter 7 ‘Conclusion and Council Decisions’. These recommendations and proposals included a new executive management structure for the Institute, the advertising of the new executive management positions, and the negotiation of redundancy payments “within designated limits” for the existing Executive members. In December 2004 when the Council commissioned the Semple Report were five members of the Executive: the Director Veronica Arbon; the Deputy Director Trevor Cook; the General Manager Barry Hinton; the Registrar Holly Marjerrison; the Assistant Academic Director; and the Complainant Berice Anning. Three of these five, Ms Arbon, Mr Cook and Ms Anning, are indigenous, the other two, Mr Hinton and Ms Marjerrison, are not indigenous. The Semple review and report are not an issue of dispute between the parties. During the course of the Hearing Ms Anning acknowledged several times that the Semple Report itself and the recommendations made by Mr Semple did not discriminate. However, Ms Anning claimed in her evidence at the Hearing and in her written material before the Commission that the Semple Report may have been commissioned specifically to “target” her. For example, in paragraph 13 and paragraph 4 of her Submissions, she says: 13. The Review of the Executive from December 2004 to March 2005 was a ploy to remove the Director CEO and then myself as the call to terminate the Director and Assistant Director (Academic) had failed on 2-3 December 4. In order to understand the basis of my complaint, it is necessary to view the history leading up to the Institute’s restructure and the basis for which I was targeted. I refer the Commissioner to a document I provided during the hearing, a copy of which was also provided to the Respondent entitled “Opening Statement for NT ADC Hearing Set Down for 13-14 December 2006”.
(2) It is not unlawful for a person to discriminate against another person on any of the attributes referred to in subsection (1) if an exemption under Part 4 or 5 applies. 20. (1) For the purposes of this Act, discrimination includes – (a) any distinction, restriction, exclusion or preference made on the basis of an attribute that has the effect of nullifying or impairing equality of opportunity; and (b) harassment on the of an attribute, in an area of activity referred to in Part 4. (2) Without limiting the generality of subsection (1), discrimination takes place if a person treats or proposes to treat another person who has or had, or is believed to have or had – (a) an attribute; (b) a characteristic imputed to appertain to an attribute; or (c) a characteristic imputed to appertain generally to persons with an attribute, less favourably than a person who has not, or is believed not to have, such an attribute. (3) For discrimination to take it is not necessary that – (a) the attribute is the sole or dominant ground for the less favourable treatment; or (b) the person who discriminates regards the treatment as less favourable. (4) The motive of a person alleged to have discriminated against another person is, for the purposes of this Act, irrelevant. 28. Areas of activities This Act applies to prohibited conduct in the areas of – … (b) work; …