Temporary exemptions under the
Sex Discrimination Act:
HREOC Guidelines
Updated 24 April 2008
Contents
- 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 44 of the Sex Discrimination Act 1984 (Cth) (the SDA) gives the Human Rights and Equal Opportunity Commission (HREOC) the power to grant temporary exemptions from certain provisions of the SDA.
Actions or circumstances covered by the exemption are not unlawful under the SDA 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 SDA.
The SDA 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 SDA, 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 SDA;
- The Applicant’s reasons for seeking an exemption;
- Submissions by interested parties; and
- All relevant provisions of the SDA.
- 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?
- whether the circumstances are within the jurisdiction of the SDA (see s 9);
- whether any of the permanent exemptions to the SDA apply (see ss-30-43 of the SDA); and
- whether the circumstances can be brought within the ‘special measures’ provision of the SDA (see s 7D of the SDA).
2. Is granting an exemption consistent with the objects of the SDA?
- to give effect to the object and spirit of the Convention on the Elimination of All Forms of Discrimination Against Women;
- to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status, pregnancy, potential pregnancy or family responsibilities, including discrimination involving sexual harassment; and
- to promote recognition and acceptance within the community of the principle of the equality of men and women.
- 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 SDA, 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 SDA (see below).
3. Is it appropriate to grant an exemption subject to terms and conditions?
- 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 SDA.
4. What are the views of persons or organisations who are interested in or who may be affected by the outcome of an 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 Sex Discrimination Commissioner.
The SDA 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?
(a) 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.
(b) What activities can be the subject of an exemption?
Temporary exemptions under the SDA may be granted from any of the provisions of the SDA which make discrimination unlawful in relation to:
Exemptions may be granted to permit discrimination that would otherwise be unlawful in the following areas:
- employment, superannuation, commission agents, contract workers, partnerships, qualifying bodies, registered industrial organisations and employment agencies (ss 14-20);
- education (s 21);
- goods, services and facilities (s 22);
- accommodation and land (ss 23-24);
- clubs (s 25);
- administration of Commonwealth laws and programs (s 26);
- application forms (s 27);
- insurance (s 41(1)(e)); and
- existing superannuation fund conditions (s 41B(1)(b)).
(c) What activities can not be the subject of an exemption?
HREOC can not grant exemptions from:
- sexual harassment (Part II, Division 3 of the SDA); or
- offences under the SDA, such as victimisation of a person because he or she has made a complaint or advertising that indicates an intention to do an act that is unlawful under the SDA.
(d) How should applications for exemption be made?
Applications should be submitted electronically to legal@humanrights.gov.au
(e) What information should the application include?
Applicants should read these guidelines carefully before preparing an application. Applications should address HREOC’s exemption criteria.
In particular, applications should include the following information:1. 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?
2. 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.
3. 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 SDA the exemption relates to (see section (b) above)
4. 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.
5. Is the exemption necessary?
The application should state why the exemption is necessary to prevent a breach of the SDA. In particular, Applicants should consider if:
- The proposed activity is covered by a permanent exemption and therefore lawful. The SDA provides for a wide range of permanent exemptions in Division 4 Part II of the SDA (ss 30-43). Acts covered by one of the permanent exemptions are not unlawful under the SDA.
- The proposed activity falls within the special measures provision and therefore lawful.Section 7D of the SDA provides for the taking of ‘special measures’ for the purpose of achieving equality between
- men and women;
- people of different marital status; or
- women who are pregnant/potentially pregnant and those who are not.
Acts that are special measures will not breach the SDA.
6. 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 SDA;
- Why compliance with the SDA 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 SDA;
- Any terms or conditions which further the objects of the SDA 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 who may be affected by the proposed activity and their representative organisations;
- 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 affected by the proposed exemption.
HREOC may seek additional information about any other matter HREOC considers relevant to considering the exemption application.7. 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 sex discrimination.
- Whether there is a complaint before HREOC under the SDA, or before a State or Territory authority dealing with sex 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.
