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.
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.
Example of support material for an employment-related exemption
Anna is the CEO of YouthPlay, a company that convenes weekend sporting competitions for children (mixed and non-mixed competitions) and offers primary and secondary school sporting programs.
YouthPlay wants to employ a soccer coach for its under 15 boys. It wants to employ a young male coach, preferably someone under 25.
YouthPlay’s proposed conduct involves discrimination on the basis of sex and age in the area of employment.
YouthPlay makes an application for an exemption to VCAT.
Anna notes in YouthPlay’s exemption application that it is important that young boys participating in the weekend competitions have a male role model. Anna also states that there are ‘occupational health and safety' and 'mentoring' reasons why it is important to have a male coach managing ‘young boys with lots of energy’.
YouthPlay should provide the following information to VCAT:
- YouthPlay’s constitution and guiding documents (this will help VCAT determine what the organisation does, how it operates and who it provides services to).
- Any relevant policies or statements that govern how YouthPlay employees interact with children playing sport, including occupational health and safety policies.
- The position description for the sports coach role and any selection criteria that applicants will have to meet (if this is available).
- An affidavit signed by Anna supporting the application and specifying the occupational health and safety and mentoring reasons for employing a male coach in this role.
- If possible, a witness statement (on affidavit) provided by other key members of YouthPlay in support of the application.
Example of support material for a goods and services-related exemption
KidsOut! is a program delivered by a local council that provides supervised holiday activities for children.
Parents sign their kids up for a range of activities and then drop them off at the council offices on the morning of the activity.
KidsOut! decides that it is too difficult to supervise teenage children on some activities and decides that it will limit participation in the KidsOut! service to children aged 12 years and under.
The proposed conduct involves discrimination on the basis of age in the area of goods and services.
The council makes an exemption application to VCAT.
The council should provide the following information to VCAT in support of its application:
- Some guiding documents about the formation and structure of the KidsOut! program.
- An affidavit signed by the KidsOut! convener supporting the application and setting out reasons for limiting the service to children under 12 years. The affidavit should discuss relevant points, such as the cost of the program, the number of children who usually attend the program, occupational health and safety considerations and issues, the number of staff who have to be employed to supervise children and the types of activities that the program usually runs. The affidavit should also consider whether there are any other less restrictive options that could be preferred rather than refusing the service to teenagers, such as running separate KidsOut! programs for younger and older children with different levels of supervision and different activities.