Exceptions and Exemptions under the Tasmanian Act

The Anti-Discrimination Act 1998 (Tas) recognises that sometimes there needs to be exceptions to allow for conduct that might otherwise be considered discriminatory. Exceptions are set out in Part 5 of the Act.

Part 5 of the Act also sets out the procedure to follow if someone wants to apply for an exemption from the Act.

What is an exception?

Exceptions are ‘defences’ to claims of discrimination. If a person claims discrimination, the person against whom the claim is made can argue that the discrimination was not unlawful discrimination, if an exception covers it.

An example would be a club which called itself the ‘Over-60’s Club’ and catered for a membership of people who have reached 60 years of age or more. A person below this age who tried to join would have their membership application rejected. The club could claim it is a ‘club for a particular age group’, which is an exception provided for in section 32 of the Act.

What exceptions are named in the Act?

The Act lists general exceptions at sections 23-26. These include equal opportunity groups, which attempt to promote equal opportunity for disadvantaged or special need people (s26), groups which promote the benefit of disadvantaged or special need people (s25), and charities (s23). If it is necessary to discriminate in order to comply with State or Commonwealth law, this is also permissible (s24).

Specific exemptions are listed at sections 27–55 and include: same-sex or age group sports teams, superannuation, insurance and financial services for particular age groups, retirement, education for persons of a particular age (e.g. University of the Third Age, Hobart), age appropriate employment, benefits and concessions for particular ages, cultural and religious places.

What is an exemption?

Exemptions can be applied for before a claim of discrimination is made. An organisation can take a pro-active stance to have a ‘ruling’ from the Anti-Discrimination Commissioner, stating that what the organisation wants to do is ‘protected’ discrimination. This can happen if the organisation wants to discriminate in favour of a disadvantaged group – for example, to favour unemployed youth in an employment scheme.

If a claim of discrimination is lodged after an exemption has been granted, the claim ultimately may be rejected because the organisation, or the organisation’s program, has been exempted from the Act for a set period.

How do ‘exceptions’ and ‘exemptions’ work?

Charities

The Act says that charities can include a discriminatory provision in their aims and objectives where their charitable benefits are provided for persons with an attribute or identity that under the Act could not otherwise be able to be singled out for particular treatment. An example would be a charity supporting refugees of a particular race.

Actions required by law

Laws typically require people to do, or not do certain acts. For example there are laws that state that people under the age of 18 cannot be sold alcohol or cigarettes. Under the Act, this is not unlawful age discrimination as it is an action required by law.

Sometimes discrimination required by law is not reasonable. For example, the Marriage Act states that people in same-sex relationships cannot marry. This is obviously discrimination on the ground of sexual orientation, and there is no logical reason as to why this discrimination is contained in the Marriage Act. In these situations, people are required to lobby lawmakers to change the law.

Disadvantaged groups and special needs

Employers may seek to provide a service to disadvantaged groups and the most effective way of doing this is to employ a person of the sex/race/or other attribute of the group they are seeking to service. For example, the Migrant Resource Centre might employ migrants with two or three languages, or from a represented community to better facilitate interaction between staff and clients.

Equal opportunities

Employers intending to enhance the career prospects of certain disadvantaged groups may target certain training programs exclusively at the groups in question.

Other Specific Exceptions

There are many other specific exceptions. Theatrical productions may require characters of a certain age or race. Religious institutions may seek to employ a person with that religion. Single sex accommodation may seek a person of a particular gender in a residential care position. Most of the exceptions are in line with current community views as to what is appropriate. Change rooms in clothing stores are sex segregated and the general expectation is that shop assistants employed in those areas should be of the same sex as those using them.

Most employers, where community standards appear clear-cut, rely on a non-discriminatory advertisement setting out the duties involved in order to get the person they want. However, not every case is clear-cut.

Applying for Exemption

Division 11 of the Act covers applying for exemptions.  If granted, an exemption allows a person or organisation to engage in conduct that may be considered discriminatory.  For example, a community organisation that provides support to women may want to employ a female case worker.  The community organisation would apply for an exemption to do so.

To gain an exemption under the Act, a person applies to the Anti-Discrimination Commissioner. The Commissioner looks at the desirability of redressing the effect of past discrimination or prohibited conduct; and any other relevant factor (s56). The Commissioner can grant an interim exemption, pending consideration of the application.

If the Commissioner grants an exemption, the exemption cannot last for a period greater than three years. Conditions can be attached, and the exemption can be extended if the Commissioner approves the renewal application (ss56–57).

A list of granted exemptions appears on the Office of the Anti-Discrimination Commissioner’s website.

If the applicant breaks any conditions, the Commissioner can withdraw the exemption (s57(2)). Anyone can apply to the Anti-Discrimination Stream of the Tasmanian Civil and Administrative Tribunal for review of a grant, refusal or renewal of an exemption, or imposition of conditions, within 28 days of a notice appearing in the Government Gazette. Information on the Tribunal is available online.

Procedure

Upon receipt of any application for an exemption, the Anti-Discrimination Commissioner publishes a notice in the Government Gazette, The Mercury, The Examiner and The Advocate advising that an application has been made, the name of the person who has made it, and the nature and basis of the application. Submissions in support or against must be made in writing to the Commissioner within 14 days of the date of publication of the notice. Submissions will be considered by the Commissioner in granting, refusing, etc. an application for exemption. They may be referred to in the reasons and will be listed in the document granting or refusing the exemption. Notice of exemption/refusal is published in the Gazette.

Is There A Cost?

There is no cost associated with applying for an exemption.