The Equal Opportunity Act 2010 allows the Victorian Civil and Administrative Tribunal (VCAT) to grant temporary exemptions, allowing discrimination to be legal in some circumstances.
VCAT may grant a temporary exemption if it believes that this would further the Act's goal of promoting equal opportunity.
The following information outlines how to apply for an exemption and what issues VCAT considers when determining an exemption. You can also download our Applying for an Exemption Flowchart (PDF, 161KB).
Does an exemption apply to your circumstances?
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.
Find out more about whether you need an exemption.
How do you apply for an exemption?
You need to apply to VCAT to make an application for an exemption from the Equal Opportunity Act 2010.
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.
How long does an exemption apply?
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.
VCAT may also set conditions when granting an exemption. For example, VCAT may require you to:
- provide periodic reports on how often the exemption is relied on (for example, where an exemption limits participation on the basis of sex or refuses employment on the basis of race)
- include particular text in job applications or advertisements.
What does VCAT look at when considering an exemption application?
VCAT must consider a number of issues when deciding whether to grant, renew or revoke an exemption from the Act. These are:
- Is it unnecessary to grant an exemption because an exception already applies?
- Is it unnecessary to grant an exemption because the planned action is really a special measure?
- Is it unnecessary to grant a further exemption because an exemption already applies? This is where you previously sought an exemption from the Act, and the period of that exemption has not yet expired.
- Is the planned action a reasonable limitation on the right to equality? The right to equality is set out in Section 8 of the Charter of Human Rights and Responsibilities (the Charter). This involves VCAT considering whether the proposed limitation on the right is reasonable, justified, necessary and proportionate.
In some instances, VCAT might decide to grant an exemption for the action, even though an exception might apply to part of the action, or one aspect of the action.
For example, an all-girl school wants to hire a counsellor to work part time in the school sick bay and part time as a pastoral care officer to assist in personal development and health classes. The school wants to limit employment in this role to women only. Some parts of the role need the counsellor to attend students while in the sick bay, and this involves entering girls-only toilets and change rooms. This could mean that there is a genuine occupational requirement for the counsellor to be a woman (this engages the exception in section 26 of the Equal Opportunity Act 2010).
However, other aspects of the role do not necessarily require the counsellor to be a woman, including the teaching support and counselling responsibilities. It might be appropriate to grant an exemption to the school to cover these aspects of the role.
In assessing this application, VCAT might decide that there are good policy reasons for granting an exemption to the school to cover all of the action. It might do this to ensure certainty for the school in terms of how its recruitment practices are covered by the Act and how it can respond to any complaints.
What about federal anti-discrimination law?
Federal anti-discrimination laws also operate in Victoria. Exemptions under Victoria’s Equal Opportunity Act 2010 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.
What supporting material should you provide to VCAT with your exemption application?
You need 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.
Find more information about exemptions on the following websites: