Exceptions to the prohibition of discrimination

 

Exceptions in the EO Act

Discriminatory conduct may not be unlawful if one or more of the general or specific exceptions in the EO Act apply to the conduct. The EO Act’s exceptions include (but are not limited to):

Genuine occupational requirements (s 26)

An employer may limit employment to people of one sex where there is a genuine occupational requirement for doing so. For example, female attendants are required to staff female change rooms to preserve privacy and decency. Employers may also limit employment on the basis of age, sex or race in relation to a dramatic or artistic performance, entertainment, photographic or modelling work or any other employment, where it is necessary to do so for authenticity or credibility.

Welfare services (s 28)

An employer can limit the offering of employment to people with a particular attribute where the employment is to provide services to meet the special needs of people with that attribute – where the services themselves are a special measure under section 12, or a special needs service under section 88 – and the services 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.

Welfare measures (s 60)

Hostels or similar institutions that are run wholly or mainly for the welfare of people of a particular sex, age, race or religious belief are permitted to refuse to accommodate people who do not have the particular attribute.

Special needs (s 88)

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 (ss 82–84)

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 religion, or the conduct is reasonably necessary to avoid injuring the religious sensitivities of adherents of the religion.

Protection of health and safety (s 86)

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 (s 72)

A person may exclude:

people of one sex or gender identity who are 12 years or older from participating in a competitive sporting activity in which the strength, stamina or physique of competitors is relevant. Participation in a competitive sporting activity can also be restricted:

to people who can effectively compete,

to people of a specified age or age group, or

to people with a general or particular disability;

a person of one sex from competitive sporting activities where participation is necessary to progress to an elite competition and exclusion is necessary to enable participants to progress to national or elite-level competition. The exception permits the exclusion of one sex to facilitate participation in a sporting activity, where it is reasonable to do so. These exceptions also apply to people 12 years and older.

Political clubs (s 66A)

A club established principally for a political purpose may exclude people from membership of that club or its management committee on the basis of political belief or activity.

Reasonable standards of dress, appearance and behaviour for students (s 42)

An educational authority may set and enforce reasonable standards of dress, appearance and behaviour for students. A standard of dress, appearance or behaviour is reasonable if the educational authority administering the school has taken into account the views of the school community.

Aged-based admission schemes and quotas (s 43)

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 (s 75)

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), or an enactment (other than an enactment under the EO Act).

Even where an exception may apply to conduct, a dispute can still be brought to the VEOHRC and conciliated, or an application made to VCAT for a hearing. 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 Commonwealth legislation, contact the Australian Human Rights Commission (seeContacts for information and complaints”).

Special measures in the EO Act

Under the EO Act (s 12), 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 systemic 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.

No application to the VEOHRC or VCAT is required in relation to a special measure. If the criteria in section 12 is met and amounts to a special measure, then the conduct is not discrimination and is not unlawful under the EO Act.

Exemptions from the EO Act

VCAT can grant temporary exemptions from the EO Act (s 89). A person or organisation may apply for an exemption in relation to specific conduct. If granted, the conduct relevant to the exemption is not 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 (s 90):

whether the proposed measure is unnecessary (e.g. because it is a special measure, because an exception applies, or because an exemption already applies);

whether the proposed exemption is a reasonable limitation on the equality right in section 8 of the Charter of Human Rights and Responsibilities Act 2006 (Vic); and

all relevant circumstances of the case.

The maximum period for which an exemption can be granted or renewed is five years.