Anti-Discrimination Commissioner : Exceptions and exemptions

Exceptions and exemptions

What is an exception?
What is an exemption?
What exceptions are named in the Act?
How do exceptions and exemptions work?
How do I apply for an exemption?
Is there a cost?
Why should I apply for an exemption?

The Anti-Discrimination Act 1998 outlaws discrimination on any of the following attributes or identities:

age
breastfeeding
disability
family responsibilities
gender/sex
industrial activity
irrelevant criminal record
irrelevant medical record
lawful sexual activity
marital status
relationship status
parental status
political activity
political belief or affiliation
pregnancy
race
religious activity
religious belief or affiliation
sexual orientation
association with a person who has, or is believed to have, any of these attributes or identities

The Act recognises that sometimes an exception may be made, and 'discrimination' allowed, on stated grounds. Exceptions are set out in Part 5 of the Act, along with the procedure to follow if someone wants to apply for an exemption from the Act's provisions.

What is an exception?

Exceptions are 'defences' to complaints of discrimination. If a person makes a complaint of discrimination, the organisation against whom the complaint is made can argue that the discrimination was not unlawful discrimination, as an exception covers it. The organisation must show that the exception applies, on the balance of probabilities.

Example: a club may restrict membership to elderly people only. A person under, say, 35 seeking to join will have their membership application rejected. They lodge a complaint with the Office of the Anti-Discrimination Commissioner. The club then argues it caters only for elderly people, so it comes within an exception. To claim an exception applies, the club must prove its case.

What is an exemption?

Exemptions can be applied for, before a complaint of discrimination is made. An organisation may take a proactive stance to have a 'ruling' from the Anti-Discrimination Commissioner, that what the organisation wants to do is 'protected' discrimination. This can happen if the organisation wants to discriminate in favour of a disadvantaged group. Exemptions can only be granted for a maximum of three years. After three years it is the responsibility of the organisation to renew the exemption, otherwise the exemption will expire and they could be subject to a complaint of discrimination with out a defence.

Example: to favour unemployed youth in an employment scheme. If a complaint of discrimination is lodged after an exemption has been granted, the complaint ultimately may be rejected because the organisation, or the organisation's program, has been exempted from the Anti-Discrimination Act for a set period. The onus is on the organisation to prove it has an exemption from the Anti-Discrimination Commissioner.

What exceptions are named in the Act?

The Act lists general exceptions at sections 23-26 as:

charities
actions required by law
disadvantaged groups and special needs
equal opportunities

The Act then lists specific exceptions - that is, exceptions relating to certain attributes or identities - at sections 27-55:

gender/sex
family responsibilities and other attributes
sport and gender/sex
insurance and superannuation, and gender/sex or marital status
sporting activity and age
clubs for particular age groups
superannuation, insurance and financial services for particular age groups
employment based on age
education for persons of a particular age group
benefits and concessions and age
children requiring an adult companion
clubs for persons of certain races
employment based on race
cultural and religious places
sporting activity for persons with disabilities
insurance and superannuation for persons with disabilities
employment based on disability
education for persons with disabilities
infectious disease
access and provision of services
employment based on industrial activity
irrelevant criminal record in the care of children
employment based on religion
participation in religious observance
employment and political belief, affiliation or activity
legal incapacity
public purpose in reporting matters relating to race, disability, sexual orientation or lawful sexual activity, and religious belief or affiliation or religious activity

How do exceptions and exemptions work?

Charities
The Act says that charities can include a discriminatory provision in their aims and objects providing exclusively for charitable benefits wholly or party for persons with an attribute or identity that under the Act would not otherwise be able to be singled out for particular treatment, and can do any act necessary to effect the charitable purpose.

Example: an organisation wants to provide services to refugees who have fled to Australia from a war-torn country without any possessions. Many have been tortured by secret police. It can apply for a charity exemption, claiming this group of people needs special attention and care, on the basis of race.

Actions required by law
Example: an hotel wants to advertise for a bartender job with an age requirement. It could apply for an exemption to place a job advertisement requiring applicants to be over 18 years, because the law says that no one under 18 is permitted to be in a public place where alcohol is served.

Disadvantaged groups and special needs
Example: the Students' Representative Council at the university wants to establish a 'women's officer' position to service the needs of women students. It can seek an exemption from the gender/sex in employment discrimination provisions, arguing that women students are a disadvantaged group on campus or have special needs because they are women - such as sanitary pad/tampon dispensers freely accessible in the women's toilets, or sexual harassment support and counselling.

Equal opportunities
Example: a large public company wants to enhance its market performance by appointing women as directors and board members, at the same time as improving its equal opportunity profile. It can seek an exemption for a program of action designed to provide women with experience in board matters and executive functions, excluding men from the plan.

Gender/sex
Example: a single-gender/sex school or hostel wants to advertise for a teacher or 'cottage parent' of the same gender/sex as the students or residents. Provision for this and single gender/sex, accommodation, residential care positions, facilities, and religious institutions is included in the Act.

Family responsibilities and other attributes
The Act allows for an exemption on the ground of family responsibilities, parental status, pregnancy, breastfeeding or marital status if a person with those attributes or identities requires special services and facilities, and it would impose 'unjustifiable hardship' to require those services or facilities to be provided by the organisation or institution seeking the exemption.

Example: the local delicatessen says it cannot provide a babies' change room for parents who stop by to shop, because it doesn't have the space and couldn't afford to build the facility, anyway. It is likely to gain an exemption, but the large department store is unlikely to do so, being unable to prove it doesn't have the space and couldn't afford to put in a change room catering to parents shopping with their young children.

Sport - gender/sex, age, disability
Example: a sports club wants to restrict participation in competitions to youngsters, while a community centre at the local retirement village wants to organise a festive event titled 'grandads race to the sea'.

Each is entitled to seek an exemption for age. Grandmothers may object, resisting their apparent exclusion. Alternatively, the Paraplegic Games can request an exemption to organise sporting events for competitors with disabilities.

Insurance and superannuation - gender/sex, age, disability
Insurance and superannuation providers can seek an exemption for schemes discriminating against contributors on grounds of gender/sex, marital status, age or disability, so long as they are complying with prescribed standards under the Superannuation Industry (Supervision) Act 1993 (Cth) or they base it on disclosed actuarial, statistical or other data from a reliable source, and the discrimination is reasonable on the basis of that data and any other relevant factors. The data must be produced in support.

Clubs - gender/sex, age, race
Example: In Western Australia in the 1950s, the Coolabah Club was set up in East Perth for Aboriginal members, to reduce the disadvantages faced by Aboriginal people as a minority and to preserve Nyungah culture.

If Aboriginal people wanted to preserve Tasmanian Aboriginal culture through grouping together in a 'club' and keeping membership to Aboriginal people only, they could come under the exemption provisions.

Example: Guides and Scouts want to maintain an age limit on members, so seek an exemption under the Act.

Employment based on age
Example: a theatre company wishes to stage James Barry's Peter Pan. Youth is a genuine occupational qualification or requirement for the starring role, so the company could discriminate against an applicant of advanced years who sought an audition.

Example: a 'youth wage' is payable for a training position in an office or factory. The Act provides for an exception to non-discrimination in employment on the attribute of age, where wage rates are based on age.

Example: a charity or job agency wants to set up an employment scheme directed at youth, between the ages of 16 and 24. It brings statistical evidence to show that youth are disadvantaged in the job market so require specific attention and opportunities, which the organisation will provide.

Education - age, disability
A person may discriminate on the ground of age in the provision of educational programs for a particular age group, or for people with disabilities requiring special facilities.

Example: a school catering to students with and without disabilities seeks an exemption for certain classes to be held for children with hearing and speech disabilities, which will include the siblings of those children, too. An exemption can be claimed under the Act.

Example: the University of the 3rd Age wants to direct its educational resources to people over a certain age, so can seek an exemption for classes that restrict the lower age limit on students.

Benefits and concessions - age
Example: a bus company decides it wants to encourage elderly people to travel on non-peak hours. It can seek an exemption for reducing fares for people over the age of 60 during the hours of 9.00 am to 4.30 pm.

Example: a cinema wants to encourage children to attend a special screening of The Wizard of Oz. It reduces the entry fee to all persons accompanying a child, on the basis that they are 'associated with' persons who are of a particular age - namely, the target group 'children'.

Accompanied by an adult
Example: a shopping centre is concerned that young children are running up the down escalators, and down the up escalators, knocking over other users. It can seek an exemption for a policy that children may travel on the escalators only in the company of an adult, due to the danger disruptive children are causing to themselves and others.

Employment based on race
Example: the Tasmanian Arts Centre plans a spectacular series of performances of Jimmy Chai's Bran Neu Day musical. It seeks an exemption to advertise for Aboriginal actors on the basis that this is a genuine occupational requirement for the roles.

Cultural and religious places
Example: Jewish people can claim an exemption so that only Jewish people enter the synagogue, just as Muslims can claim an exemption restricting who may enter the mosque, in accordance with the doctrines of the religion and the need to avoid offending the religious sensitivities of any person of the Jewish or Muslim religion. Similarly with other religions.

Example: Aboriginal people can claim an exemption so that an Aboriginal site is restricted to Aboriginal people because that restriction accords with cultural, spiritual/customs and beliefs and is necessary to avoid offending the cultural, spiritual sensitivities of Aboriginal people.

Employment based on disabilities, access to public places
A person may discriminate in employment against or in favour of someone with a disability if:

the prospective employee is unable to carry out the inherent requirements of the job
or they would require services or facilities applicants without disabilities do not require, and providing them would impose unjustifiable hardship on the employer
a person with a disability is required for a dramatic performance or entertainment, or as an artist's or photographic model in production of works of art or visual images requiring a person with a particular disability to make it authentic
a person with a disability can best provide the services required for promoting the welfare of persons with disabilities

Unjustifiable hardship can be used to support an exemption from providing access to public places or services. The onus is on the party wanting the exemption.

Employment based on religion/participation in religious observance
Example: a school wants to employ a teacher to teach the Catholic faith, so may seek an exemption to employ one who believes in Catholicism or belongs to the Roman Catholic Church.

Example: the Anglican Church can seek exemption to employ only Anglicans as ministers, priests or bishops, just as a Buddhist Temple is entitled to engage only adherents of Buddhism as Monks, and similarly with all religious institutions.

Irrelevant criminal record
Example: in the education, training or care of children, people with irrelevant criminal records can be cut out of the selection process, if in the relevant circumstances it is reasonably necessary to protect the physical, psychological or emotional wellbeing of children.

Employment - political belief, affiliation or activity, industrial activity
If industrial activity is a genuine occupational qualification for the position, a job can be given on this basis, just as advisory positions to Cabinet Ministers, or staff members of political parties or in their electorate offices can be filled on the basis of political belief, etc.

Legal incapacity - age, disability
Example: a vendor can refuse to sell the house to a child, because the child cannot legally enter into a contract, or to a person who has a recognised intellectual disability or infirmity that precludes them from entering into legal contractual arrangements.

Applying for an exemption

To gain an exemption under the Act, a person applies to the Anti-Discrimination Commissioner. In deciding to grant or refuse the application, the Commissioner looks at:

the desirability of redressing the effect of past discrimination or prohibited conduct
any other relevant factor: s. 56

The Commissioner can grant an interim exemption, pending consideration of the application.

After considering the application, the Commissioner may:

grant an exemption for a period not exceeding three years, unconditionally or with conditions
extend the exemption for another period of up to three years
refuse the exemption: s. 57

If the applicant breaks any conditions, the Commissioner can withdraw the exemption.

The Commissioner must provide written reasons for any refusal, or for varying or imposing conditions during the exemption period. Anyone can apply to the Anti-Discrimination Tribunal for review of a grant, refusal or renewal of an exemption, or imposition of conditions, within 28 days of a notice of the refusal, etc appearing in the Government Gazette.

Is there a cost?

There is no fee attached to the application of an exemption.

Why should I apply for an exemption?

If you think your organisation's conduct is covered by an exception, you could do nothing, waiting for someone to claim the conduct is unlawful discrimination or prohibited conduct. You then run the risk that your organisation will have a successful complaint made against it. You may have made a mistake in thinking the exception applies to your organisation or to whatever it is doing, when it does not.

The advantage in seeking an exemption is that if you are successful, a complaint of unlawful discrimination about the conduct that has been exempted should be unsuccessful. You can argue you set out all the facts and gained the exemption, and that what your organisation is doing is in accordance with the terms of the exemption granted.

As the onus is on you or your organisation to prove you come within an exception, it may be better to obtain an exemption. You can then show the exemption document to the Commissioner or the Anti-Discrimination Tribunal, relying on it to confirm that your organisation's conduct is sanctioned by a grant of exemption. You can say you relied on the Commissioner's determination or interpretation of the law. However, you must take care not to engage in acts outside the strict terms of the exemption, relying on it to 'excuse' that conduct is not appropriate.