It against the law to discriminate against someone because of their personal characteristics, but the law recognises that discrimination may be justified in certain circumstances. Exemptions provide a way for individuals and organisations to legally discriminate in certain circumstances for a limited period of time.
What are exemptions?
Under the Equal Opportunity Act 2010, the Victorian Civil and Administrative Tribunal (VCAT) can grant temporary exemptions, allowing discrimination to be lawful in some circumstances.
VCAT may grant a temporary exemption if:
- it believes that this would help the Act’s goal of promoting equal opportunity, and
- the proposed action is a reasonable limitation on the right to equality set out in the Charter of Human Rights and Responsibilities.
Exemptions can be granted to a person or group of people, or an activity or group of activities.
Temporary exemptions apply for the period of time set by VCAT, which cannot be longer than five years.
During the exemption period the discriminatory behaviour will not be against the law.
Before you read this page
You may prefer to print this page as it is quite long and contains a lot of information.
Please note, the following information is a guide only. To avoid doubt about whether you require an exemption, please check the Equal Opportunity Act or seek further legal advice.
To see examples of exemption decisions made by VCAT you can visit the Austlii website.
Do you need an exemption?
If you want to do something – such as offer a service, hire someone, or create a policy or requirement – and it discriminates against people with a personal characteristic protected by the Equal Opportunity Act, you should think about how you can justify this action.
You may not need to apply for a temporary exemption if a permanent exception applies or if your action is a special measure.
If your action is not an exception or special measure under the Act, you may need to apply to VCAT for a temporary exemption.
What are you trying 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.
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?
Is your planned action discriminatory?
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.
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.
Look at the Act as a whole, but the key points to consider are:
- Does the proposed action discriminate against people with a personal characteristic protected by the law, such as age, sex, race, religion, disability, sexual orientation etc.?
- Will the proposed action take place in an area of public life such as clubs, schools and shops, or in the workplace?
Using the example of Start to Work Ltd (discussed above), the action engages the Equal Opportunity Act 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.
Find out more about special measures.
Is the action an exception?
The Equal Opportunity Act 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.
See a full list of exceptions.
Keeping exemptions consistent with human rights
Following the case of Lifestyle Communities No. 3, it is now clear that exemptions granted by VCAT must be consistent with the Charter of Human Rights and Responsibilities.
In practice, this means that an exemption from the Act must constitute a reasonable limitation of the human rights engaged in the particular circumstance (section 7 of the Charter). VCAT may not grant exemptions sought for solely economic or commercial reasons.
What about federal anti-discrimination law?
Federal anti-discrimination laws also operate in Victoria. Exemptions under Victoria’s Equal Opportunity Act do not automatically cover complaints against you under federal anti-discrimination law.
Contact the Australian Human Rights Commission to enquire about seeking an exemption under the:
- Age Discrimination Act 2004
- Disability Discrimination Act 1992
- Sex Discrimination Act 1984.
Applying for an exemption
You need to apply to VCAT for an exemption from the Act.
You will need to fill in an application form and provide supporting documentation explaining why you are seeking the exemption.
Visit the VCAT website for more information about the process of making an exemption application, including a link to relevant forms and the VCAT enquiry line.
When you make an exemption application to VCAT you will also need to provide supporting documentation explaining why you are seeking the exemption. This documentation needs to give VCAT enough information so that it can make a decision about whether it will:
- grant an exemption application, or
- decide that your action is a special measure, or
- decide that an exception applies to the action.
What support material should I provide?
While every exemption application involves different circumstances, you need to ensure that your supporting documentation helps to explain why you need to engage in particular conduct, or take a particular action, that discriminates against a person or group.
This might include things like relevant policies, position descriptions and organisational structure, and statements setting out the reasons behind the action you propose to take.
Remember that an exemption restricts other people’s right to equality, so VCAT is making an important decision.
The following examples provide some general tips about the kind of material that VCAT might find helpful when assessing your application.