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. For example:
- Genuine occupational requirements: an employer may limit employment to people of one sex where there is a genuine occupational requirement for doing so. For example, 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.
- Special needs: 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 where that 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 or 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 with a 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.
- Competitive sporting activities: A person may also exclude 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.
- Political clubs: 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 of 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 bought to the VEOHRC and conciliated.
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: "Introduction", above, for contact details).
The Victorian Civil and Administrative Tribunal (VCAT) may also grant temporary exemptions from the EO Act. If granted, the conduct relevant to the exemption will not be unlawful for the period specified by VCAT.
The EO Act now provides that it is not discrimination for a person to take special measures, done in good faith, for the beneficial purpose of promoting or realising substantive equality for members of a group with a particular attribute.
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.
The EO Act creates a positive duty to eliminate discrimination, which obliges duty holders under the EOA to take proactive, reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation.
The reference in the duty to ‘reasonable and proportionate measures’ and the qualifying words ‘as far as possible’ seek to ensure that the level of compliance required is appropriate and proportionate to the size and operations of the duty holder, taking into account:
(a) the outcome that the duty seeks to achieve;
(b) the size of the duty holder, their resources and service priorities; and
(c) the practicability and cost of compliance.
RACIAL AND RELIGIOUS VILIFICATION UNDER THE RRTA
Disputes in relation to racial or religious vilification are handled under the provisions of the EO Act.
Racial vilification is conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of an individual or a class of people because of their race, colour, descent, ancestry, nationality or national origin, ethnicity or ethnic origin.
Religious vilification is conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, an individual or class of people because of their religious beliefs or activities.
The RRTA sets out a number of circumstances (exceptions) in which conduct does not amount to vilification. These include conduct engaged in reasonably and in good faith in the performance, exhibition or distribution of an artistic work, in making or publishing a fair and accurate report of any event or matter of public interest, or in the course of any statement, publication, discussion or debate about:
- any genuine academic, artistic, religious or scientific purpose; or
- an issue in the public interest
The meaning of "religious purpose" includes "conveying or teaching religion or proselytising".
Certain private conduct is also exempted from the RRTA. Racial and religious vilification is not established if it occurred in such a way that it would be reasonable to expect that the parties' conduct was private (that is, it could not be heard or seen by anyone else). If the parties ought to have expected that their conduct may have been seen or heard by anyone else the private conduct exception does not apply.
A person's motive for engaging in vilifying conduct is irrelevant under the RRTA.
Further information about racial or religious vilification under the RRTA is available by contacting the VEOHRC (see: "Introduction", for contact details).
EXCEPTIONS TO THE PROHIBITION OF DISCRIMINATION :: Last updated: Thu Aug 9th 2012