Special measures

The Equal Opportunity Act 2010 recognises that when we treat everyone the same it can have a different outcome, or unequal results, for people.

The Act, therefore, allows and encourages people and organisations to treat people differently in specific situations if those people or organisations are taking action to address inequality for disadvantaged groups. This action is called a special measure.

Under section 12 of the Act a special measure is conduct (an action or measure) that is taken for the purposes of promoting or realising substantive equality for a group of people who have one or more protected attributes, which are personal characteristics such as age, race, sex, disability, gender identity, sexual orientation or physical features. This list is not exhaustive. There are 18 protected attributes at s6 of the Act.

Read more about examples of special measures

What is substantive equality?

Substantive equality is about levelling the playing field to give everyone a fair go. It recognises the need for different approaches to overcome the practical effects of disadvantage and discrimination. Some groups that have been disadvantaged by inequality and past discrimination may need special assistance to address that disadvantage, rather than simply being treated equally or the same in a formal sense. This is at the heart of a special measure.

For example, a company who wants to run a traineeship program for only Aboriginal and Torres Strait Islanders to increase employment opportunities for the group who are under-represented in the company because of disadvantage will be allowed to target its recruitment to the group as a "special measure". If the company offered the traineeship to all people, it may be treating everyone the same (equality in the formal sense) but the program will not be addressing inequality of Aboriginal and Torres Strait Islanders and so the group will remain under-represented in the company. Whereas the targeting of only that group may contribute to remedying past inequality to bring about equality (substantive equality).

What are the requirements of a special measure?

Section 12 of the Act sets out the requirements for a special measure. A person or organisation seeking to establish a special measure to advance a group of people must have evidence to show that they meet each of the requirements outlined below.

In the Victorian Civil and Administrative Tribunal (VCAT) decision of Waite Group (Human Rights) [2016] VCAT 1258 VCAT usefully set out each of the requirements for a special measure and raised questions which may be asked to assess whether proposed conduct will satisfy each requirement. Below is a summary of the requirements and VCAT’s suggested questions.

1. The conduct (action or measure) is directed to members of a group with a particular attribute

To be a special measure it is necessary to first identify the group with the attribute. Special measures must be directed to members of a group with a particular attribute listed in s6 of the Act, as follows:

  • age
  • breastfeeding
  • employment activity
  • gender identity
  • disability
  • industrial activity
  • lawful sexual activity
  • marital status
  • parental status or status as a carer
  • physical features
  • political belief or activity
  • pregnancy
  • race
  • religious belief or activity
  • sex
  • sexual orientation
  • an expunged homosexual conviction
  • personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.

There may be more than one attribute, for example a measure may be directed at children (under the attribute of age) with disabilities. 
In order to identify the group with an attribute, VCAT suggests the following questions may be raised (see note 1):

  • Is the proposed conduct directed at or concerned with a group of people who share one (or more) of the attributes listed in section 6 of the Act?
  • Does the proposed conduct fall within one of the areas of public life in Part 4? (see note 2)
  • How would the group or group members be most accurately described?

2. The purpose of promoting or realising substantive equality

(a) Identify the purpose

The purpose of all special measures is to promote or realise substantive equality. This means that a person setting up a special measure does so for the purpose of addressing equality for the group – rather than for another dominant reason, such as promoting commercial interests.

To identify the purpose of a measure, VCAT suggests the following questions may be raised (see note 1):

  • What is the purpose of the proposed conduct?
  • How is that purpose connected to the identified attribute and the group members?
  • What process has been undertaken to arrive at the proposed conduct? Are there documents, discussion papers or other material which explain the development of the proposed conduct?
  • If there is more than one purpose, how do the purposes interact or overlap? Is one more important than another?

Example of a purpose that could be a special measure

An education provider decides to create a bursary to provide accommodation at the school for one Aboriginal student who lives remotely each year. This could be a special measure.

Example of a purpose that is not a special measure

An educational provider decides to offer 60 per cent of new places at the school to international students, charging these places at an increased fee rate, for the purpose of funding improvements to school buildings. This would not be a special measure and could be unlawful discrimination.

Special measures with two purposes

In some cases, a person can set up a measure for two purposes: one of which is to address discrimination and promote equality for a group. In this situation it is important to consider what elements of the program promote or achieve substantive equality, and how you could explain what the measure does for the protected group.

For example, a government department wants to limit recruitment for an Aboriginal Cultural Liaison officer to Aboriginal candidates only. The department is taking this measure for two purposes. Firstly, because the requirements of the role will be best met by someone who has a unique understanding of Aboriginal culture, spiritual connections to the land and good connections with the Aboriginal community. Secondly, because it recognises that limiting an employment opportunity to Aboriginal candidates will promote substantive equality in employment for Aboriginal Australians (the remedial purpose). This could be a special measure.

(b) Identify the inequality and its cause

A special measure is intended to address inequality. To take action as a special measure, a person or organisation must be satisfied that they have identified an inequality. It is also important to identify the cause of the inequality so that the next step, of tailoring action to redress the inequality and its cause, can be performed.

To identify the inequality and its causes, VCAT suggests the following questions may be raised (see note 1):

  • Is the purpose of the proposed conduct to promote or realise equality for the group members?
  • What is the nature of the inequality the group members currently experience and how will the proposed conduct assist in remedying that inequality?
  • How do you know there is the inequality? Are there statistics, studies or reports that explain its nature and cause? Has the organisation seen or had experience that demonstrates the inequality?

Example of identifying the inequality and its cause

A university may identify an inequality – that women are under-represented in its academic workforce within a particular faculty. The causes of the underrepresentation may include a lack of female candidates for positions, a lack of female academic staff to act as role models, unconscious bias in recruitment practices or other societal and organisational-specific factors.

(c) Conduct intended to promote or realise substantive equality for members of the group with the attribute

A person or organisation must be satisfied that purpose of the action that they plan to take is to actually remedy the inequality and its causes for the particular group. While there may be more than one purpose, it is sufficient that one of the purposes is to take action to remedy the inequality and its causes. This is a key component of a special measure.

To be satisfied that the purpose of the action is to address substantive equality for the group, VCAT suggests the following questions may be raised (see note 1):

  • How will the proposed conduct remedy the inequality experienced by members of the group?
  • What are the practical aspects of the conduct and how are they intended to increase equality or reduce disadvantage?
  • Is the proposed conduct designed to advance or assist a specific person? If so, is that person a member of the group identified by reference to a shared attribute? Is the conduct of a kind that would assist other group members if made available more broadly?

Example of conduct intended to promote or realise substantive equality for the group

A local council wants to address the under-representation of people with disabilities in the workforce (the inequality) by offering traineeships in a council-owned café to only people with disabilities (the conduct). The conduct may be considered a special measure if the purpose of the conduct is to actually remedy the inequality, in other words, offering of traineeships to only people with disabilities is aimed at addressing the under-employment of people with disabilities.

3. Other essential criteria

To qualify as a special measure under the Act, a person or organisation must also be satisfied that the following factors have been met.

(a) Good faith

The action must be undertaken in good faith to help promote or achieve substantive equality for members of the group. This means the person must be acting with an honest and sincere intention. As part of the good faith requirement, the person proposing a special measure should show that action is something sought or wished by the group who will benefit. It may also show good faith to see evidence of success in a pilot program.

VCAT suggests the following questions may be raised (see note 1):

  • Why has the proposed conduct been developed? What motivated the plans to engage in the proposed conduct?
  • Is the proposed conduct the product of research or request for assistance? If so, provide details.
  • Has another entity offered funding for the proposed conduct? If yes, describe who has provided the funding, any relevant limits on how it may be used and information about why that entity has offered the funding with those limits.
  • Has there been any consultation about the proposed conduct with the group members or representative bodies? Has there been a pilot program? Have community groups or other stakeholders said they support or do not support the proposed conduct?

Examples of good faith

An organisation that wants to employ only people between 18 and 25 years to provide support services to older people in the community has conducted a pilot program which demonstrates that the conduct of recruiting people of a particular age is successful in reducing the rate of youth employment and increasing the connectedness and inclusion of older people. The evaluation of the pilot program may be a factor indicating good faith.

The pilot program may also show that both young and older people in the pilot were welcoming of the project, which will be a further indication of good faith.

(b) Reasonably likely to achieve its purpose

A person or organisation proposing a special measure must be satisfied that the proposed conduct is reasonably likely to achieve the purpose. To assess the reasonable likelihood, there should be consideration of:

  • the purpose
  • how the purpose will address the inequality
  • whether the conduct is appropriately tailored to achieve a remedial purpose, and
  • whether the person or organisation is capable of undertaking the special measure.

This means that people do not have to prove that the measure will, in all circumstances, promote substantive equality for a group – rather that it is likely to do so.

VCAT suggests the following questions may be raised (see note 1):

  • How can the elements or components of the proposed conduct be described?
  • Keeping in mind the identified purpose of the proposed conduct, how are those elements or components individually or together expected to advance or assist the group?
  • Has a pilot been run by the applicant or similar conduct been engaged in by another organisation which shows that the proposed conduct is likely to achieve the purpose?

Examples where the proposed conduct is reasonably likely to achieve its purpose

A local council proposes to reduce the social isolation of women by hosting a women-only event to mark the end of Ramadan, which will allow women who are not able to attend mixed events to celebrate their religious and cultural backgrounds. The conduct may be considered reasonably likely to achieve its purpose (of addressing social isolation) as the event is tailored to achieve its purpose of reducing social isolation by giving women of a particular cultural and religious background an event to socialise and engage in a safe and culturally-sensitive environment.

(c) Proportionality

A person wanting to engage in a special measure must make sure that the action they want to undertake is a proportionate way of achieving substantive equality for the group. A proportionate measure is one that can demonstrate a reasonable relationship between the real purpose and the means sought to achieve it. The conduct must be proportionate to the purpose and go no further than necessary to achieve that purpose.

VCAT suggests the following questions may be raised (see note 1):

  • Has the proposed conduct been designed to achieve the purpose only or will there be other outcomes? How do any other outcomes relate to the purpose? (See note 3)
  • Is the proposed conduct likely to achieve more than the stated purpose? If so, is it necessary to go that far? How will the person determine whether the measure is no longer needed?
  • As relevant, how will non-group members be affected by the proposed conduct? Is any impact able to be justified taking into account the circumstances of the members of the group and the non-group members?

(d) Justified because the members of the group have a particular need for advancement or assistance

To qualify as a special measure, a person must be satisfied that the group needs assistance and advancement, otherwise the special measure would have nothing to remedy. While it is not necessary that the whole group need advancement, it does require that the overwhelming majority are disadvantaged.

VCAT suggests the following questions may be raised (see note 1):

  • Taking into account all of the other factors, what is the good reason (or reasons) for engaging in the proposed conduct?
  • Given the proposed conduct would otherwise amount to unlawful discrimination, what factors justify the conduct and how are they connected to addressing inequality or disadvantage?
  • Have other steps been taken to attempt to remedy the inequality or disadvantage? If yes, why have they not been sufficient?

Each requirement must be satisfied

Each of the requirements outlined above must be satisfied in order to be considered a special measure.

In addition, each requirement must be substantiated. Statistical information, publications, surveys and other documents will assist in providing evidence for a special measure.

When does a special measure stop being a special measure?

The Act does not permit a special measure program or service to continue after substantive equality has been achieved, unless removing it would result in the target group again becoming disadvantaged.
This means that special measures are a balancing mechanism designed to facilitate equality but not to unfairly advance one group over another once the playing field is even.

Do people or organisations need to make an application to VCAT for a special measure?

No. People and organisations do not need to apply or get approval from the VCAT for a special measure like they do for an exemption from the Act. The Act permits people to make their own assessment as to whether they satisfy each of the requirements for a special measure and have sufficient evidence to base their assessment.

People and organisations may need some advice, including legal advice, to help them make their assessment. Once satisfied, people and organisations may simply get on with the special measure to address substantive equality for the particular group.

If undertaking a special measure, should people apply to VCAT for an exemption?

No. Where a measure or action is a special measure it will not constitute discrimination. This means that a person or organisation undertaking a special measure to promote or realise substantial equality for a particular group will not need to apply for an exemption under the Act.

When should I apply for an exemption under the Equal Opportunity Act 2010?

If a person or organisation is not satisfied that what is proposed is a special measure, or they are unsure, they may need to reconsider their approach or apply for an exemption at VCAT.

Find out more about exemptions

Examples of special measures

VCAT has made many declarations that certain conduct is considered a special measure under the Equal Opportunity Act 2010. In such cases, the application for an exemption application was dismissed. 

Read more about examples of special measures

Contact us

Contact us by phone, in person or email to find out more about special measures. We also have a free interpreter service.

Notes

1. See Waite Group (Human Rights) [2016] VCAT 1258

2. The Commission notes that it is not a requirement under the Equal Opportunity Act 2010 that conduct for a special measure fall within an area of activity under Part 4 of the Act.

3. The Commission notes that proposed conduct may have more than one outcome and may still be considered a propositional measure if one of the expected outcomes has a reasonable connection to the purpose.

 

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