Discriminatory conduct may not be unlawful if one or more of the general or specific exceptions contained within the EO Act apply to the conduct. The EO Act’s exceptions include:
•Genuine occupational requirements
An employer may limit employment to people of one sex where there is a genuine occupational requirement for doing so, such as where female attendants are required to staff female change rooms in order to preserve privacy and decency. Employers may also limit employment on the basis of age, sex or race in relation to a dramatic or an artistic performance, entertainment, photographic or modelling work or any other employment.
An employer can limit the offering of employment to people with a particular attribute where the employment is to meet the special needs of people with that attribute, and can be provided most effectively by people with that attribute. For example, a support service for women who have experienced domestic violence may require its counsellors to be female.
Hostels or similar institutions that are run wholly or mainly for the welfare of persons of a particular sex, age, race or religious belief are permitted to refuse to accommodate people who do not have the particular attribute.
A person may establish special services, benefits or facilities for people with particular needs and then limit access to people with those needs. For example, a support group established for fathers experiencing separation from their children may, by implication, limit the availability of the service to males only.
•Religious bodies and religious schools
Religious bodies and schools may lawfully discriminate on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity when that discrimination conforms with the doctrines, beliefs or principles of the doctrine, or it is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.
•Protection of health and safety
Discrimination on the basis of disability or physical features may not be unlawful if it is reasonably necessary to protect the health, safety or property of any person, including the person discriminated against. A person may also discriminate against another person on the basis of pregnancy if it is reasonably necessary to protect the health or safety of any person (including the person being discriminated against).
•Competitive sporting activities
A person may exclude:
– people of one sex or gender identity from participating in a competitive sporting activity in which the strength, stamina or physique of competitors is relevant. Participation in the activity can also be restricted to people who can effectively compete, people of a specified age or age group or people with a general or particular disability;
– a person of one sex from competitive sporting activities where it is necessary to progress to an elite competition. The exception also permits exclusion of one sex in order to facilitate participation in a sporting activity, where it is reasonable to do so.
A club established principally for a political purpose may exclude people from membership of that club on the basis of political belief or activity.
•Reasonable standards of dress, appearance and behaviour for students
An educational authority may set and enforce reasonable standards of dress, appearance and behaviour for students. A standard of dress, appearance or behaviour will be reasonable if the educational authority administering the school has taken into account the views of the school community.
•Aged-based admission schemes and quotas
An educational authority may select students for an educational program on the basis of an admission scheme that has a minimum qualifying age or imposes quotas in relation to students of different ages or age groups.
•Compliance with other laws or court orders
A person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of an Act (other than the EO Act), an enactment or a court or tribunal order.
Even where an exception may apply to conduct, a dispute can still be brought to the VEOHRC and conciliated, and it is a matter for the respondent to a complaint to prove that an exception applies.
Commonwealth legislation and the EO Act may vary in relation to the exceptions that are available or the way in which they are worded. It is therefore always advisable to check both before choosing the most appropriate forum to bring a dispute or lodge a complaint. To find out about exceptions that apply under the Commonwealth legislation, contact the Australian Human Rights Commission (see “Contacts for information and complaints”).
VCAT can grant temporary exemptions from the EO Act. A person or organisation may apply for an exemption. If granted, the conduct relevant to the exemption will not be unlawful for the period specified by VCAT.
VCAT must take into account the following factors when determining whether to grant, renew or revoke an exemption:
•whether the proposed measure is unnecessary (e.g. because it is a special measure or because an exception applies);
•whether the proposed exemption is a reasonable limitation on the equality right in section 8 of the Charter of Human Rights and Responsibilities; and
•all relevant circumstances of the case.
The maximum period for which an exemption can be granted is five years.
Special measures in the EO Act
Under the EO Act, it is not discrimination for a person to take special measures, done in good faith, for the purpose of promoting or realising substantive equality for members of a group with a particular attribute. Broadly, a special measure is something designed to alleviate disadvantage suffered by a group of people with a particular attribute. Special measures are sometimes referred to colloquially as affirmative action or positive discrimination.
A special measure needs to be appropriate, proportionate and justified because the members of the group have a particular need for advancement or assistance. The measure must also be reasonably likely to achieve its remedial purpose.
The special measures provision does not permit a special measures program or service to continue after substantive equality has been achieved, unless removal of it would result in the target group again becoming disadvantaged. Special measures are therefore a balancing measure. They facilitate equality but do not advance one group over another once the playing field is even.