Special measures

People can take positive steps to help disadvantaged groups. These are called 'special measures' in the Equal Opportunity Act 2010. The law makes clear that these actions are allowed and are not unlawful discrimination.

This is one of the ways the Equal Opportunity Act 2010 promotes substantive equality.

For example, a local council identified a high proportion of unemployed youth in the area and set up a program to assist people between the ages of 18 and 24 to find jobs. The scheme was a special measure for the benefit of a disadvantaged group.

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 discrimination in the past may need special assistance to address that disadvantage, rather than simply being treated equally or the same in a formal sense.

The Equal Opportunity Act 2010 describes in more detail what a special measure is. The elements set out in the Act have to be met for something to be a special measure.

You can read on for more details about special measures or contact us for more information.

Application forms to apply for an exemption under the Equal Opportunity Act 2010 are available from the Victorian Civil and Administrative Tribunal website.

What is a special measure?

Under the Equal Opportunity Act 2010, it is not discrimination for a person (or body) to take a special measure that promotes substantive equality for a group of people who have one (or more than one) protected attributes, for example race, sex, disability.

Section 12 of the Equal Opportunity Act 2010 sets out the rules and relevant criteria for special measures. A person seeking to establish a special measure to promote a group of people should consider the steps they propose to take against the criteria in section 12.

Special measures have some essential characteristics. They must:

  1. be undertaken in good faith to help promote or achieve substantive equality for members of the group
  2. be reasonably likely to achieve this purpose
  3. be a proportionate way of achieving the purpose, and
  4. be justified because the members of the group have a particular need for advancement or assistance.

These elements are discussed in more detail below.

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Elements of a special measure: purpose of the actions to be taken

To qualify as a special measure under the Equal Opportunity Act 2010, an action or program needs to be done in good faith for the remedial purpose of promoting or realising substantive equality. This means that a person setting up a special measure does so for the purpose of promoting equality for a group – rather than for another dominant reason, such as promoting commercial interests.

For example, an education provider decides to create a bursary to provide accommodation at the school for one Indigenous student who lives remotely each year. This could be a special measure.

or

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.

In some cases, a person can set up a measure for two purposes: one of which is the remedial purpose of addressing discrimination and promoting equality for a group. In this case though, it is important to think about what elements of the program or measure are for a remedial purpose, and how you could explain what the measure does for the protected group.

For example, a government department wants to limit recruitment for an Indigenous 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 Indigenous candidates will promote substantive equality in employment for Indigenous Australians (the remedial purpose). This could be a special measure.

Elements of a special measure: is it a necessary and proportionate step?
To be a special measure under the Equal Opportunity Act 2010, a measure also needs to be:

  1. appropriate
  2. proportionate, and
  3. justified.

When considering whether a measure is appropriate, necessary and justified you should look at the group being protected and promoted by the measure, and ask whether members of the group have a particular need for advancement or assistance that is met by taking the measure.

For example, an IT company wants to limit its advertising and recruitment for 10 new cadets to female university graduates only. It is doing this because it wants to promote employment for women in the IT industry. The company considers whether the measure is a special measure under the Equal Opportunity Act 2010 and decides that it is not, because the target group of the measure is not appropriately limited – it applies to all women in Australia with tertiary qualifications. The company looks at the evidence and decides that this is not a group that has a particular need for assistance. It might be more appropriate for the company to apply for an exemption under the Equal Opportunity Act 2010 instead.

The measure must also be 'reasonably likely' to achieve its remedial purpose. This means that you 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. A good way of determining this is to look critically at your reason for the measure, and ask whether the measure or action you are taking is matched to the need for assistance.

When does a special measure stop being a special measure?

The Equal Opportunity Act 2010 does not permit a special measures program or service to continue after substantive equality has been achieved, unless removal of 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.

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Do I need to make an application for a special measure?

No. You do not need to apply or get approval from the Victorian Civil and Administrative Tribunal for a special measure like you do for an exemption from the Act.

But you will need to consider whether the proposed actions meet the test for a special measure and whether everything you propose to do falls within this test. You may need some advice to help you look at this.

If a discrimination complaint is made against your measure you will need to be prepared to give good reasons to explain how and why what you're doing is a special measure.

If what you propose to do is not a special measure you may need to reconsider your approach or apply for an exemption.

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Special measures and exemption applications

If a measure is a special measure, do I still need to apply for an exemption under the Equal Opportunity Act 2010?

No. Where a measure or action is a special measure it will not constitute discrimination. This means that a person taking a special measure to promote substantial equality for a particular group will not need to apply for an exemption under section 89 of the Equal Opportunity Act 2010 to exempt it from the operation of the Act.

In four cases in 2011, the Victorian Civil and Administrative Tribunal made orders that certain measures were special measures under the Equal Opportunity Act 2010. The Tribunal found that there was no need for the applicants (a corporation, a university, a council and a government department) to be granted an exemption under the Equal Opportunity Act 2010. Further information about these cases is provided below.

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Examples of special measures

The Victorian Civil and Administrative Tribunal has made a number of decisions about exemption applications under the Equal Opportunity Act 2010 that help illustrate what a special measure is.

The Commission intervened in these matters to provide assistance to the Tribunal in its work.

In each of the cases below, the Tribunal held that these were special measures so there was no discrimination breaching the Equal Opportunity Act 2010. This meant there was no need for an exemption and the applications were dismissed.

  • Darebin City Council Youth Services sought an exemption from the Equal Opportunity Act 2010 so that it could host two women's-only events, targeted towards young women within the Darebin community who, due to cultural and religious reasons, wouldn't otherwise have the opportunity to attend mixed gender events. The council also sought an exemption to employ women only for the duration of the two events. The Tribunal found that the proposed conduct amounted to a special measure for the purposes of section 12 of the Equal Opportunity Act 2010 and the conduct therefore was not discrimination. The Tribunal dismissed the application for an exemption as it was not necessary. In addition, the Tribunal made a declaration that the council's conduct was a special measure. > read more
  • Parks Victoria wanted to advertise for and employ Indigenous people to care for Wurundjeri country. The Tribunal found that the purpose of the activity was to provide employment opportunities to Indigenous people, to increase the number of Indigenous people employed by Parks Victoria, to provide opportunities for connection and care for the Wurundjeri country by its traditional owners, and also for the maintenance of the culture associated with the country. The Tribunal was satisfied that the measure was proportionate because at the time the application was made only 7.6 per cent of Parks Victoria's workforce were Indigenous. > read more
  • Cummeragunja Housing and Development Aboriginal Corporation wanted to advertise for and employ Indigenous people in the positions of mental health worker, Aboriginal health worker, trainee Aboriginal health worker and administration trainee. The Tribunal found that the purpose of the activity was to provide employment opportunities for Indigenous applicants, as well as to provide health services to local Indigenous people in a manner that is culturally appropriate. At the time of making the application there were almost equal numbers of Indigenous and non-Indigenous staff employed at Cummeragunja, while 95 per cent of people using the services were Indigenous. These statistics satisfied the Tribunal that the measures were proportionate. > read more
  • The Ian Potter Museum of Art wanted to advertise for and employ an Indigenous person in the role of Vizard Foundation assistant curator. The Tribunal found that the purpose of the activity was to increase the number of Indigenous people employed by the Museum. The Tribunal held that the measure was proportionate, as the number of Indigenous staff was dramatically lower than the number of Indigenous people in the wider population. > read more

In all of these cases the Tribunal was satisfied that the proposed conduct would be undertaken in good faith and that it was reasonably likely to achieve the various purposes.

The examples above recognise the reality that not all groups have the same access to opportunity in employment. Factors including poverty, geographic isolation, a lack of skills and historical discrimination have disadvantaged particular groups. These groups will often include Indigenous people, people with disabilities, culturally and linguistically diverse communities and, in some circumstances, women.

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More information

For more information about special measures contact us.

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