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. Exemptions can be granted to a person or group of people, or an activity or group of activities.
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.
Do you need an exemption?
If you want to do something like offer a service, hire someone, or create a policy or requirement that discriminates against people with a personal characteristic protected by the Equal Opportunity Act, you should think about how you can justify this action.
Your action may be included as an exception under the Act, which means that discrimination may not be against the law in particular circumstances.
Or your action may be seen as a positive step to help disadvantaged groups. Under the Act, these actions are called ‘special measures’. The law makes it clear that these actions are allowed and are not unlawful discrimination.
If your action is not seen as an exception or special measure under the Act, you may need to apply for an exemption.
Find out more about whether you need an exemption.
Applying for an exemption
You need to apply to VCAT for an exemption from the Act. Similarly, if you had exemption from the Equal Opportunity Act 1995 and it has expired, you will need to consider whether you need to obtain another exemption from VCAT to cover this conduct.
Find out more about applying for an exemption.
Examples of recent exemptions
A school was granted an exemption to advertise for prospective female students and offer bursaries targeted at prospective female students to promote a gender balance of students at the school.
A government department was granted an exemption to run a recruitment drive that was limited to indigenous people to improve the rate of Indigenous people employed in the public sector in Victoria.
A local council was granted an exemption to close the public swimming pool early on two nights a week, and limit admission to women only, so that Muslim women who cannot swim in mixed company could use the pool.
Under the Equal Opportunity Act 2010, exemptions will no longer be needed in many of these situations – they will be regarded as special measures.
Keeping exemptions consistent with human rights
Following the case of Lifestyle Communities No. 3, it is now clear that exemptions granted by VCAT must be consistent with the Charter of Human Rights and Responsibilities.
In practice, this means that an exemption from the Act must constitute a reasonable limitation of the human rights engaged in the particular circumstance (section 7 of the Charter). VCAT may not grant exemptions sought for solely economic or commercial reasons.