Exceptions and Exemptions to the Equal Opportunity Act 1995 Options Paper

EO Act 1994 South Australia

47—Measures intended to achieve equality

This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking intended to ensure that persons of the one sex, or of a particular marital status, have equal opportunities with persons of the other sex, or of another marital status, in any of the circumstances to which this Part applies.

65—Act does not apply to projects for benefit of persons of a particular race

This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking for the benefit of persons of a particular race.

82—Exemption for projects for benefit of persons with a particular impairment

This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking for the benefit of persons who have a particular impairment.

SDA (Cth) 7D Special measures intended to achieve equality

(1) A person may take special measures for the purpose of achieving substantive equality between:

(a) men and women; or

(b) people of different marital status; or

(c) women who are pregnant and people who are not pregnant; or

(d) women who are potentially pregnant and people who are not potentially pregnant.

(2) A person does not discriminate against another person under section 5, 6 or 7 by taking special measures authorised by subsection (1).

(3) A measure is to be treated as being taken for a purpose referred to in subsection (1) if it is taken:

(a) solely for that purpose; or

(b) for that purpose as well as other purposes, whether or not that purpose is the dominant or substantial one.

(4) This section does not authorise the taking, or further taking, of special measures for a purpose referred to in subsection (1) that is achieved.

DDA (Cth) 45 Special measures

This Part does not render it unlawful to do an act that is reasonably intended to:

(a) ensure that persons who have a disability have equal opportunities with other persons in circumstances in relation to which a provision is made by this Act; or

(b) afford persons who have a disability or a particular disability, goods or access to facilities, services or opportunities to meet their special needs in relation to:

(i) employment, education, accommodation, clubs or sport; and

(ii) the provision of goods, services, facilities or land; or

(iii) the making available of facilities; or

(iv) the administration of Commonwealth laws and programs; or

(v) their capacity to live independently; or

(c) afford persons who have a disability or a particular disability, grants, benefits or programs, whether direct or indirect, to meet their special needs in relation to:

(i) employment, education, accommodation, clubs or sport; or

(ii) the provision of goods, services, facilities or land; or

(iii) the making available of facilities; or

(iv) the administration of Commonwealth laws and programs; or

(v) their capacity to live independently.

Appendix C
Comparison of Statutory Authority
provisions in other States and Territories

Source: reproduced from Appendix B of the Department of Justice’s Background Paper for SARC.

State/Territory	Exception	Scope of Application
NSW		Where necessary to comply with Act, regulation, by law rule etc or where necessary to comply with order of Court or Tribunal
QLD		Allows discrimination where necessary to comply with or specifically authorised by Act etc. Only applies to provisions in existence at commencement of section
AS		Allows discrimination where necessary to comply with or specifically authorised by Act etc, order or court etc
WA
NT
Tas		Allows discrimination where reasonably necessary to comply with a law of State of Commonwealth or in order of commission, court or Tribunal.
Act		Allows discrimination for anything done necessary to comply with law etc.
VIC		Allows discrimination if necessary to comply with or is authorised by an Act or enactment. It is not necessary for the Act to specifically authorise discrimination it just needs to authorise the conduct that would otherwise be discrimination.

1 All documents and submissions to the Review are available at http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/Home/Your+Rights/Equal+Opportunity/JUSTICE+-+Equal+Opportunity+Review+-+Documents.

2 See Exceptions review web site at http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/Home/Your+Rights/Equal+Opportunity/JUSTICE+-+The+Exceptions+Review+-+A+review+of+the+exceptions+and+exemptions+in+the+Equal+Opportunity+Act+1995.

3 Australian Christian Lobby submission, 4-5.

4 Mark Bell Extending EU Anti-Discrimination Law: Report of an ENAR (European network against racism) Ad Hoc Expert Group on Anti-Discrimination Law (ENAR, Brussels, 2008) 13.

5 Australia has very few requirements for any positive action to be taken, and those that exist require only reporting that a plan has been developed and acted on: for example the Equal Opportunity for Women in the Workforce Act 1999 (Cth) or the requirements of some state anti-discrimination laws for similar EO actions in relation to public employment: ADA (NSW) Part 9A, EOA (WA) Part IX. By contrast, USA and UK have gone further in requiring stronger forms of positive action to be taken to move towards practical equality, for example the UK has imposed an equality duty on public authorities requiring some positive action to reduce inequality.

6 These include International Convention on the Elimination of All Forms of Racial Discrimination (CERD), Article 1(4), International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 4 (1), and the ILO Discrimination (Employment and Occupation) Convention 1958 (No. 111).

7 Committee on the Elimination of Discrimination against Women, General Recommendation No. 25: Temporary special measures, Thirtieth session, 2004, para 14.

8 Gerhardy v Brown (1985) 159 CLR 70 at 126.

9 Justice Statement 2: The Next Chapter (Department of Justice, 2008), see also Justice Statement 1: New Directions for the Victorian Justice System 2004 – 2014: Attorney-General’s Justice Statement, May 2004; A Fairer Victoria: Progress and Next Steps, June 2006.

10 EU research paper.

11 This view was put by the VEOHRC, and in the joint Human Rights Law Resource Centre (HRLRC) and Public Interest Law Clearing House (PILCH) submission.

12 Section 12 of the EO Act provides that ‘This Act does not prohibit discrimination if an exception in Part 3 (whether or not in the same Division as the provision prohibiting the discrimination) or Part 4 or an exemption under Part 4 applies.’

13 Although s. 8(2) of the Charter refers to the right to enjoy all human rights without discrimination, the EO Act actually protects rights only in the specific areas covered by its prohibitions, rather than in relation to all areas protected by human rights. If protection was to be given in terms of s. 8(2), the areas of operation of the EO Act would be broadened to include all areas of human rights, not merely the specified areas of employment, education, etc. This is how the Racial Discrimination Act 1975 (Cth) is drafted.

14 VEOHRC submission.

15 VEOHRC submission.

16 ‘First national EO reforms "expected" at Nov SCAG,’ Discrimination Alert, 30 August 2008, 1.

17 Section 6A(1) of the RDA provides “This Act is not intended, and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently with this Act.” What, if any, limits are imposed by the final clause have not been explored, but there may be a question whether provisions that differ substantially would be acceptable within this test.

18 See discussion of the guidelines in Fernwood and the Boeing case at s. 83 below.

19 See Senate Legal and Constitutional Standing Committee, Report of Inquiry into the Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality (2008) at [7.10] to 7.16].

20 Ibid. at [11.64]-[11.65].

21 In particular there are systemic effects for gay teachers in non-government schools, as outlined in the discussion of s. 25 and ss. 75 and 76.

22 Section 28 Exemption for single sex accommodation provides: ‘The Tribunal, by granting an exemption under section 83, may authorise an employer to limit the offering of employment to people of one sex if they will be required to live in communal accommodation provided by the employer that is not suitable for occupation by people of both sexes.'

23 Victorian Law Reform Commission, Report No. 36, Review of the Equal Opportunity Act (1993) at 161, proposed new s.457.

24 The onus of proof was discussed by Coghlan DP in South v RVBA [2001] VCAT 207, and the absence of a provision in the EO Act regarding the onus of proof of exceptions was noted. In that case, it was held that since s.66, which was relied on, was not part of the definition of discrimination, it should be treated similarly to a defence and the onus of proving it applied was for the respondent. This leaves an implication that the exceptions that form part of the same section as the prohibition of discrimination may be treated as an element of the definition of discrimination for the respondent to establish. This would not be justifiable, and it would be preferable to clarify this expressly.

25 This discussion is substantially based on the Background Paper and VEOHRC submission, as well as the combined submission of HRLRC and PILCH.

26 Gardner Review, Appendix A.

27 Inability to perform the inherent requirements of the particular work even after being provided with reasonable adjustments or accommodation.

28 VEOHRC supplementary submission, 2009.

29 Qantas Airways Ltd v Christie [1998] HCA 18; 193 CLR 280; 72 ALJR 634; 79 IR 120; 152 ALR 365.

30 X v Commonwealth [1999] HCA 63; 200 CLR 177; 167 ALR 529; 74 ALJR 176.

31 See An Equality Act for a Fairer Victoria (Gardner Report), 105-6.

32 For this reason, clarifying the meaning of ‘family business’ as suggested by State Trustees in its submission would not be relevant to the operation of this provision, as it applies to any business.

33 John Ryan referred to a counselling service operated in accordance with Catholic principles that did not fall within the religious exemptions and relied instead on s.21.

34 See Sex Discrimination Act 1984; Race Discrimination Act 1975; Disability Discrimination Act 1992; Age Discrimination Act 2004; Human Rights and Equal Opportunity Commission Act 1986.

35 Section 11 of the DDA provides: 11 Unjustifiable hardship

For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:

(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and

(b) the effect of the disability of a person concerned; and

(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and

(d) in the case of the provision of services, or the making available of facilities—an action plan given to the Commission under section 64.

36 The Equal Opportunity Amendment (Family Responsibilities) Act 2006 also sets out a requirement to make reasonable adjustments for parents and carers. See further An Equality Act for a Fairer Victoria, p. 92.

37 An Equality Act for a Fairer Victoria, (Gardner Report), 91.

38 John Ryan, personal submission.

39 The employer seeking to use this exception should be required to make an application to the Commission specifying the ‘reasonable terms and conditions’ which the employer intends to impose and the grounds for requiring the ‘reasonable terms and conditions’. The applicant should be required to advise persons affected by the exception of the application and its details, and all applications should be available to the public and easily accessible. The lodgement of the application with the Commission should activate the exception. Any person affected by the exception or with an interest in the exception should be permitted at any time the exception is in operation to lodge an objection to the operation of the exception. If a challenge was brought, the matter of the application and objection should be dealt with by the Tribunal with the applicant being required to bear the onus of proof in relation to the exception. The Tribunal should have the power to confirm, vary or terminate the exception.

40 Association of Independent Schools Victoria also supported s. 24 as a reasonable provision.

41 Zhang v Kanellos & Anor [2005] FMCA 111.

42 Hunyor, J ‘Short skirts and the Sex Discrimination Act: 'what's wrong with being sexy?' (2006) 31 Alternative Law Journal 15.

43 Kristen Walker, Legal opinion [39]-[40], attachment to Victorian Independent Education Union submission.

44 Victoria, Parliamentary Hansard, Legislative Assembly, Tuesday 29 August 2000, p. 251.

45 Enough is Enough: a report on discrimination and abuse experienced by lesbians, gay men, bisexuals and transgender people in Victoria, Deb Dempsey, Victorian Gay and Lesbian Rights Lobby, c2000, found that 90 per cent of transgender people experienced verbal abuse, 63 per cent experienced physical threats and 20 per cent suffered physical abuse. These figures are quoted at page 254 of the 29 August 2000 Victorian Hansard debate prior to the introduction of the Equal Opportunity (Gender Identity and Sexual Orientation Bill) 2000.

46 Laws of Australia, 4. Business organisations: 4.8. Non-corporate Organisations, Partnerships, Fiduciary Duties.

47 Title IX of the US Civil Rights Act provides: Section 1681. Sex: (a) Prohibition against discrimination; exceptions. No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, …

48 See DEECD website: http://www.education.vic.gov.au/healthwellbeing/safety/bullying/homophobia.htm.

49 Education and Training Parliamentary Committee, Inquiry into Dress Codes and School Uniforms in Victoria Schools, Final Report December 2007, Chapter Four.

50 PILCH Homeless Persons Clinic submission [5.3].

51 Victorian Law Reform Commission, Report on the EO Act 1984 (1993).

52 IOC Medical Commission, Stockholm consensus on sex reassignment in sports, available at http://multimedia.olympic.org/pdf/en_report_905.pdf.

53 These organisations are in the process of amalgamating.

54 Taylor v Moorabbin Saints Junior Football League and Football Victoria Ltd [2004] VCAT 158.

55 City of Los Angeles v Manhart 1978, 435 US 702.

56 See for example the works cited in Australia's Future Tax System (Retirement Income System), Australian Human Rights Commission Submission to the Review Panel on Australia's Future Tax System (February 2009), available at http://www.hreoc.gov.au/legal/submissions/2009/20090227_tax.html.

57 Senate Legal and Constitutional Committee Inquiry into the Sex Discrimination Act July 2008, see note 16 above.

58 This declaration specifically affirms the right to appoint religious personnel as one of the freedoms of belief it covers.

59 This concern was expressed by the Uniting Church Justice and International Mission, and the Federation of Community Legal Centres, which gave the example of a gay and lesbian welfare organisation that was refused conference accommodation by a religious organisation, and until it obtained legal advice, assumed it could not complain of this discrimination.

60 The Anglican Archbishop of Melbourne considered that the tests of necessity and conformity in s. 75(2) and (3) rendered them a reasonable limitation on the right to equality, and that s. 76 was important and adequately confined. The Uniting Church supported these exceptions.

61 Jubber v Revival Centres International [1998] VADT 62, where a code of conduct preventing church attendance by a man wearing an earring was upheld as conforming with the doctrines of the religion.

62 Senate report, note 57 above, 95-96.

63 Victoria, Parliamentary Debates, Legislative Assembly, 4 May 1995, 1254 (Jan Wade, Attorney-General).

64 [1998] VADT 62 (unreported, 7 April 1998).

65 [1986] EOC 92-161.

66 Burke v Tralaggan [1986] EOC p. 96, 588 cited in Jubber v Revival Centres International [1998] VADT 62 (unreported, 7 April 1998).

67 Quoted in submission of the Catholic Archdiocese of Melbourne.

68 Sandberg, Russell and Doe, Norman, ‘Religious Exemptions in Discrimination Law’ (2007) 66 Cambridge Law Journal 302.

69 Source: Summary Statistics for Victorian Schools, March 2009 at http://www.eduweb.vic.gov.au/edulibrary/public/publ/research/publ/Brochure2009March-brc-v2.0-20090331.pdf. See also Australian Bureau of Statistics, Government and Non-Government Schooling. at http://www8.abs.gov.au/AUSSTATS/ABS@.NSF/Previousproducts/9FA90AEC587590EDCA2571B00014B9B3?opendocument.

70 ABS, Lifestyle Marriage and Divorce trends, 2007 cited by Victorian Independent Education Union Submission, 4.3.

71 Senate Cttee at 99.

72 See Australian Research Centre in Sex, Health & Society, Writing themselves in Again – 6 years on, surveying 1749 young people from across Australia who identified as same sex attracted. Jesuit Social Services, Not So Straight (2006) report examined how Catholic Schools can best respond to the needs of same sex attracted students, and includes both cases studies of good practice and recommendations that impact on pastoral care, staff development, curriculum and the shaping of school culture to ensure that all students are respected in secondary schools.

73 Griffin v Catholic Education Office may fall into this category, where a lesbian activist was refused classification as a teacher within the Catholic Education office and hence could not apply for a teaching position in an Catholic school: Human Rights and Equal Opportunity Commission, Discrimination on the Ground of Sexual Preference: Report of Inquiry into Complaints of Discrimination in Employment and Occupation, HRC Report No. 6 (1998).

74 Catholic Archdiocese of Melbourne, Christian Schools Australia.

75 Salt Shakers.

76 Review of the Equal Opportunity Act 1984 (WA) (May 2007) available at http://www.equalopportunity.wa.gov.au/publications.html#rev.

77 VEOHRC and LIV submissions.

78 Submission from David South.

79 See note 6 above.

80 See discussion of the limits of an equal treatment model of equality in Background: General Questions in this Paper.

81 ([1996] EOC 92-782.

82 Boeing Australia Holdings Pty Ltd (Anti Discrimination Exemption) [2007] VCAT 532. In this decision VCAT recently renewed an exemption granted to Boeing. The exemption was from certain sections of the Act and allowed Boeing to discriminate on the basis of nationality in the area of employment. The exemption was granted (with a number of conditions) to enable Boeing to comply with the security laws of the Department of State of the United States of America (and other American government entities). This is an example of VCAT accepting an “overriding public interest” argument to justify conduct being taken outside the statutory prohibitions on discrimination.

83 ADI Limited (Anti-Discrimination) [2007] VCAT 2242; Raytheon Australia Pty Ltd & Ors Exemption Application (Anti-Discrimination) [2007] VCAT 2230.

84 Boeing Australia Holdings Pty Ltd (Anti Discrimination Exemption) [2007] VCAT 532 (Boeing).

85 Charter of Human Rights and Responsibilities Act 2006 (Vic), s. 32.

86 Boeing, at [34].

87 Human Rights Law Resource Centre submission at [96].

88 See Exemptions Under the Sex Discrimination Act at http://www.humanrights.gov.au/legal/exemptions/sda_exemption/sda_exemption.html

89 See Anti Discrimination Amendment (Exemptions) Regulation 2004 (NSW), and the guidelines at http://www.lawlink.nsw.gov.au/lawlink/adb/ll_adb.nsf/pages/adb_exemption_guidelines.

90 This was also supported by the Federation of Community Legal Centres.

91 This process was suggested by John Ryan in relation to s.23 of the Act (power to set reasonable terms and conditions of employment). Elly Bromberg also suggested a similar process based on the planning process where application for an exemption would be made to the VEOHRC, which would advertise it and receive objections, then make a decision. Either party could then appeal the decision to VCAT.

92 VicSport submission.

93 Federation of Community Legal Centres submission.

94 PILCH Homeless Persons Legal Clinic submission, Recommendation 8.

95 Department of Justice, Exceptions Review, Consultation Paper, February 2008, 25.

96 Section 207 provides ‘The Minister must cause a review of all Acts and enactments (other than municipal council by-laws or local laws) to be undertaken for the purposes of identifying provisions which discriminate, or may lead to discrimination, against any person.’

97 Scrutiny of Acts and Regulations Committee (2005), Final Report, Discrimination in the Law: Inquiry under section 207 of the Equal Opportunity Act 1995, [Victoria] 2005, Chapter 3: Sections 69 and 207, 46.

98 Id.

99 As part of the implementation of the Charter, many government departments have been auditing Acts and enactments for compatibility with the rights set out in the Charter. In some cases, amending legislation has been introduced. It is possible that this process may have assisted in the identification of Acts and enactments that authorise discrimination.

100 Charter, s 32.

101 John Ryan, submission.

102 Mental Health Act 1986; interaction with Mental Health Act 1986/Medical Treatment Act 1988; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Residential Tenancies Act 1997, Children, Youth and Families Act 2005, Summary Offences Act 1966 / Vagrancy Act 1966, Juries Act 2000, Sentencing Act 1991, Wrongs Act 1958, Health Services (Conciliation and Review) Act 1987.

103 SARC, Final Report of the Discrimination in the Law Inquiry (2005) Chapter 3. Available at http://www.parliament.vic.gov.au/sarc/Equal_Opportunity/Final/Final_index.htm.

104 Id.

105 NSW LRC Report of Inquiry into the ADA (1991) para 6.36.