exemption guidelines

Temporary exemption under the Disability Discrimination Act:

HREOC GUIDELINES

(Revised 24 April 2008)

The purpose of these guidelines
Summary
What criteria does HREOC apply in deciding whether to grant an exemption?
How does HREOC process exemption applications?
How do I apply for an exemption?
How do I seek review of HREOC's decision?

1. The purpose of these guidelines

Section 55 of the Disability Discrimination Act 1992 (Cth) (DDA) gives the Human Rights and Equal Opportunity Commission (HREOC) the power to grant temporary exemptions from provisions of the DDA.

Temporary exemptions allow time, where necessary, to make changes to comply with the DDA. Actions or circumstances covered by the exemption are not unlawful under the DDA while the exemption is in force.

This means that if a temporary exemption is granted the activities covered by the temporary exemption can not be the subject of a successful complaint under the DDA.

The DDA does not say how HREOC should exercise the power to grant exemptions. Because HREOC's power to grant exemptions may have a significant impact on legal rights and obligations under the DDA, HREOC has developed these guidelines. The Guidelines explain:

The criteria HREOC applies in deciding whether to grant an exemption.
The process HREOC may adopt in considering an exemption application (including seeking public submissions).
How to apply for an exemption.
How to seek review of HREOC's decision.

2. Summary

In deciding whether to grant an exemption, HREOC will consider:

Whether an exemption is necessary;
The objects of the DDA;
The Applicant's reasons for seeking an exemption;
Submissions by interested parties; and
All relevant provisions of the DDA.

In granting an exemption, HREOC can:

Make a temporary exemption subject to terms and conditions;
Limit its application to particular circumstances and activities;
Grant the exemption for only a limited period (up to five years).

HREOC's decision-making process will depend on the circumstances. HREOC believes that persons who may be affected by the outcome of an exemption application should, where practicable, be given an opportunity to comment on the application.

3. What criteria does HREOC apply in deciding whether to grant an exemption?

In deciding whether to grant an exemption, HREOC will consider all of the relevant circumstances and apply the following criteria:

1. Is an exemption necessary?

For an exemption to be necessary there must be at least an arguable case that the activities which are the subject of the application constitute discrimination in breach of the DDA.

In considering this issue, it may be relevant for HREOC to consider:

whether the circumstances are within the jurisdiction of the DDA;
whether any of the permanent exemptions to the DDA apply (s 46, s 53(1);
whether any defences to the DDA apply (ss 15, 16, 17, 18, 22, 24, 25 and 27);
whether the circumstances can be brought within the ‘special measures' provision of the DDA (s 45).

2. Is granting an exemption consistent with the objects of the DDA?

HREOC must consider the objects of the DDA, set out in s 3. In broad terms, these objects are:

to eliminate, as far as possible, discrimination against persons on the ground of disability (in certain areas);
to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.

If an exemption is sought that would allow conduct that is inconsistent with, or undermines, the objects of the DDA, this will be a significant reason not to grant an exemption.

In considering this issue, HREOC will have regard to:

the reasonableness of the exemption sought – HREOC will weigh up the nature and extent of the discriminatory effect against the reasons advanced in favour of the exemption;
whether the circumstances, while not falling precisely within any of the permanent exemptions to the DDA, bear a close resemblance to any of those exemptions so as to be within the spirit or broad scheme of those exemptions;
whether the exemption could be granted subject to terms and conditions which further the objects of the DDA (see below).

Where an exemption is sought for reasons wholly unrelated to the objects of the DDA (such as to gain commercial advantage), this may be a factor weighing against the grant of an exemption.

3. Is it appropriate to grant an exemption subject to terms and conditions?

HREOC will consider whether it is appropriate to make an exemption subject to terms and conditions or to limit its application to particular circumstances or activities.

In particular, HREOC will consider whether an exemption could be granted subject to terms and conditions which:

Require actions to be taken by the Applicant during the term of the exemption which will remove the discriminatory practice or circumstance;
Require actions to be taken by the Applicant during the term of the exemption which, while not remedying the discriminatory practice which is the subject of the exemption, will further the objects of the DDA.

HREOC may also decide to grant the exemption for only a limited period (up to a maximum of five years).

4 What are the views of persons or organisations who are interested in or who may be affected by the outcome of an application?

HREOC will consider submissions from interested parties which comment on the application.

4. How does HREOC process exemptions?

HREOC can only grant an exemption when it has received an application seeking an exemption.

HREOC will seek to give interested parties an opportunity to participate in decisions regarding applications for exemption.

The process for deciding applications for exemptions will depend on the circumstances.

HREOC may take any of the following actions in deciding whether to grant the exemption:

Publish the Application on HREOC's website with a call for public comments;
Seek further information from the Applicant;
Invite persons who may be affected by HREOC's decision to make written submissions commenting on the application;
Hold discussions with the Applicant and any other interested parties to negotiate the terms and conditions on which an exemption is granted;
Make proposed decisions on Applications available to interested parties for comment before HREOC makes a final decision.

State and Territory Anti-Discrimination Boards and Equal Opportunity Commissions will also be notified that a temporary exemption application has been made and invited to comment on the Application.

In reaching its decision, HREOC will seek the recommendation of the Acting Disability Discrimination Commissioner.

The DDA requires publication in the Commonwealth Government Gazette, within one month after a decision on an exemption application, a notice:

setting out the HREOC's findings on the relevant facts;
referring to the evidence on which those findings were based; and
giving the reasons for the making of the decision.

5. How do I apply for an exemption?

• Who may apply for an exemption?

An application for an exemption may be made:

by people on their own behalf or on behalf or themselves and others; and/or
On behalf of a class of people.

• What activities can be the subject of an exemption?

Temporary exemptions under the DDA may be granted from any of the provisions of the DDA which make discrimination unlawful in relation to:

employment, commission agents, contract workers, partnerships, qualifying bodies, registered industrial organisations and employment agencies (Part 2, Division 1 of the DDA);
education (s 22);
access to premises (s23);
goods, services and facilities (s 24);
the provision of accommodation (s 25);
the sale of land (s 26) ;
clubs and associations (s 27);
sport (s 28);
administration of Commonwealth laws and programs (s 29); and
requests for information (s 30).

• What activities can not be the subject of an exemption?

HREOC can not grant exemptions from:

harassment in employment, education, or provision of goods or services (ss 35-40);
offences under the DDA (s 42, 43, 44), such as victimisation of a person because he or she has made a complaint; or
failure to comply with a Disability Standard (except the Disability Standards for Accessible Public Transport) (s 31).

• How should applications for exemption be made?

Applications should be submitted electronically to disabdis@humanrights.gov.au .

• What information should the application include?

Applicants should read these guidelines carefully before preparing an application. The application should address HREOC's exemption criteria.

In particular, applications should include the following information:

• Who is seeking the exemption?

The application should state who is seeking the exemption: i.e. the person, people or class of people.

If the application is made on behalf of an organisation, the application should include information about the nature of the Applicant. E.g. is the organisation a trading corporation or a voluntary organisation?

• How long is the exemption sought for?

The application should state how long the exemption is sought for. Exemptions can be granted for up to five years.

• What circumstances or activities are to be covered by the exemption?

The application should identify what circumstances or activities are to be covered by the proposed exemption.

The application should also identify what provision or provisions of the DDA the exemption relates to (see section (b) above)

• Who will be affected by the application?

The application should identify any specific persons or organisations that may be affected by the outcome of the application.

• Is the exemption necessary?

The application should state why the exemption is necessary to prevent a breach of the DDA.

Applicants should consider if a temporary exemption is necessary. In particular, Applicants should consider if:

The proposed activity would be subject to any defences contained in the DDA (e.g. the defence of unjustifiable hardship)?
The proposed activity is covered by a permanent exemption under the DDA and therefore lawful?
The proposed activity is a special measure under s 45 of the DDA and therefore lawful?

If you are unsure whether a temporary exemption is necessary you can email disabdis@humanrights.gov.au .

• Why should the exemption be granted?

The application should set out the reasons why the exemption is required. It should also include any evidence that supports these reasons.

The application should, where possible, explain:

How the proposed exemption fits within the objects and scheme of the DDA;
Why immediate compliance with the DDA is not possible or should not be required in this case;
Any things done or planned by the Applicant which seek to achieve the objects of the DDA;
Any terms or conditions which promote the objects of the DDA and which the Applicant is prepared to meet as a condition of receiving the exemption;
The results of any consultations undertaken by the Applicant with people with a disability and their representative organisations;
Information about any Action Plan developed and lodged by the Applicant in accordance with Part 3 of the DDA, including a report on the implementation of the Action Plan to date;
The financial or other hardship which will be incurred if the exemption is not granted;
Measures proposed to minimise or reduce any hardship which may occur to people with a disability and any other people affected by the proposed exemption.

HREOC may seek additional information about any other matter HREOC considers relevant to considering the exemption application.

• Are there factors that may affect the processing of the application?

You should tell HREOC if there are any factors that may affect the handling of your application. These may include:

Reasons why the application should be processed urgently.
There are reasons why material provided in connection with the application should not be made publicly available (e.g. protection of personal information or commercial sensitivity).
Whether you have, or intend to seek an exemption under any law of a State or Territory dealing with disability discrimination.
Whether there is a complaint before HREOC under the DDA, or before a State or Territory authority dealing with disability discrimination, in relation to the subject of the exemption application.

6. Can I seek review of HREOC's decision?

Any person whose interests are affected by a decision of HREOC regarding an application for exemption may apply to the Administrative Appeals Tribunal for a review of the decision.

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