Do you need an exemption?

The Equal Opportunity Act 2010 allows the Victorian Civil and Administrative Tribunal (VCAT) to grant temporary exemptions from the law, allowing discrimination to be legal in some circumstances.

Before you apply for an exemption you need to determine that your planned action is actually discrimination and, if so, whether the action is covered by an exception or is a special measure under the Act, or whether you need to apply for an exemption.

Asking the following questions about the action you want to take can help you decide what you need to do. They will provide a general guide about what steps you need to take so that you can lawfully undertake the activity, and minimise risks for your organisation.

You can also download our Applying for an Exemption Flowchart (PDF, 160KB).

What are you trying to achieve?

What is the action you are trying to undertake? Think about whether what you are trying to do really involves more than one action.

For example, a not-for-profit employment corporation, Start to Work Ltd, wants to create a branch dedicated to helping women who have suffered family violence undertake specialised training programs to find work in different fields.

Start to Work Ltd decides that it is appropriate to only employ women as trainers to work with women who have suffered family violence. Start to Work Ltd also wants to limit places in the specialised training program to women who have experienced family violence.

Start to Work Ltd is really trying to do two things that engage the Equal Opportunity Act 2010:

  • It is seeking to limit employment for specialised trainers to women only
  • It is seeking to limit places offered in the training programs to women who have suffered family violence.

Who does your action affect?

Once you have identified the action, you need to think about who it is likely to affect and how. Does it have an impact on men, women, people of a particular race or ethnicity, or people who have a certain religious belief?

You also need to think about whether the impact of the action is likely to be positive or negative for the groups involved. This might involve you looking at the purpose of the action. Is it to promote the rights of a particular group? Is it to create formal equality for groups being represented? Or is it to overcome specific disadvantage?

For example, a co-educational school wants to set up an academic scholarship program for girl students aged under fourteen (that is, years 7 and 8). The scholarship will be offered to one girl student applicant each year on the basis of academic merit.

This action will impact positively on girl students aged 14 and under, but negatively on boy students and other girl students over 14 years of age. The action does not appear to be remedial in nature – that is, there is not enough information to demonstrate that girl students at the school aged under 14 are disadvantaged, and the scholarship is designed to overcome that disadvantage. The purpose of the action is likely to be to attract more girl students to attend a school.

In another example, Parks Victoria wants to employ an Aboriginal person for the role of park ranger, with responsibility for overseeing land cultivation in a large state reserve. The role will involve promoting traditional land ownership and methods of land preservation. The successful applicant will be offered formal training in horticulture, water management and forestry. This action would positively impact on Aboriginal people who might apply for the role, and negatively on non-Aboriginal people who might want to apply for the role. The purpose of the action is to:

  • engage a person who would be the best person able to promote and represent indigenous interests in terms of land management, and
  • promote Aboriginal employment in a particular field.

Is your planned action discrimination?

Would your proposed action unlawfully discriminate against a person or group of people? This question requires you to think about how your action engages the Equal Opportunity Act 2010. Look at the Act as a whole, but key points to consider are.

Using the example of Start to Work Ltd (discussed above), the action engages the Equal Opportunity Act 2010 in different ways.

The proposal to limit employment for specialised trainers working in the family violence area to women only would discriminate against male applicants for the roles on the basis of sex, and in the area of employment.

The proposal to limit places in the specialised training program to women (who have suffered family violence) would likely discriminate against male applicants on the basis of sex, and in the area of goods and services.

Is the action a special measure?

The next step is to think about how the action fits into the framework of the Act. This will help inform your decision about whether or not you need to make an application for an exemption from the Act.

If the action you wish to engage in meets the criteria of a special measure under section 12 of the Equal Opportunity Act 2010, then it is not discrimination. That means you do not need to seek an exemption from VCAT to cover the action.

However, there may be situations where, for clarity or to cover a range of activities, you will still choose to apply for an exemption. If VCAT decides the action is a special measure and an exemption is not necessary, it may decide to make this clear to everyone by noting it in an order.

Is the action an exception?

The Equal Opportunity Act 2010 addresses a number of exceptions, which means that discrimination may be lawfully permitted in certain circumstances. The Act covers two categories of exceptions – general and specific.

Consider the range of general exceptions that apply to all areas of public life and then whether any specific exceptions might apply to particular areas, for example employment, might apply, or personal characteristics protected by the law, such age, sex or disability.

If you think that an exception might apply to your action, you should look at the relevant section in the Act and consider whether it applies to your circumstances. You might also want to seek some independent advice.

When considering an exemption application, VCAT may decide that it is unnecessary to grant an exemption from the Act because a permanent exception covers the action. Similarly, when you are assessing your proposed action you may decide that an exception applies and, on that basis, you don’t need to seek an exemption from VCAT.

You may not need an exemption but you need to be able to justify this assessment if someone makes a complaint.

For example, a local soccer club has a mixed competition for boys and girls to the under 14 level. For the under 15 competition, the club has two single-sex competitions. The club does this because the inter-state tournament that the club competes in requires all teams to be single sex.

The club reviews section 72 of the Equal Opportunity Act 2010 and decides that its action is covered by the exceptions relating to competitive sporting activities. It decides that it does not need to seek an exemption from VCAT in relation to the under 15 competitions.

Exemptions under the Equal Opportunity Act 2010

If your planned action is not an exception or special measure under the Act you may need to seek an exemption from VCAT to cover the conduct.

You may also wish to apply for an exemption in cases where you are unsure whether an exception or special measure applies, or if you have an exemption that has expired.

Find out more about applying for an exemption.

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