Temporary exemptions by VCAT

Contributed by The Victorian Equal Opportunity and Human Rights Commission and current to 24 March 2023

Section 89 of the Equal Opportunity Act provides for the Victorian Civil and Administrative Tribunal (VCAT) to grant, renew or revoke exemptions to unlawful discrimination. Under this section, VCAT can 'exercise a broad discretion' in exercising these powers (as determined in Georgina Martina Inc [2012] VCAT 1384):

(1) The Tribunal, by notice published in the Government Gazette, may grant an exemption—

a) from any of the provisions of this Act in relation to—

(i) a person or class of people; or

(ii) an activity or class of activities; or

b) from any of the provisions of this Act in any other circumstances specified by the Tribunal.

(2) An exemption remains in force for the period, not exceeding 5 years, that is specified in the notice.

Factors that VCAT must consider

Section 90 of the Equal Opportunity Act lists the following factors that VCAT must consider when assessing applications for the grant, renewal or revocation of an exemption:

a) whether the proposed exemption is unnecessary because—

(i) an exemption or exception already applies to the conduct; or

(ii) the conduct would not amount to prohibited discrimination (such as is a special measure); and

b) whether the proposed conduct is a reasonable limitation on the right to equality in the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter); and

c) all the relevant circumstances of the case.

These factors were determined to reflect VCAT's approach (at the time of drafting the Equal Opportunity Act) to considering exemption applications. See the Explanatory Memorandum of the Equal Opportunity Bill 2010.

In drafting section 90 of the Equal Opportunity Act, the Parliament aimed to provide a framework for the consistency of VCAT's exemption decisions. It also aimed to guide applicants about when exemption applications are required, and the information required to support an application.

Under section 90(a), conduct will not amount to discrimination if it is a special measure under section 12 of the Equal Opportunity Act. See the discussion in the chapter on Special measures.

Compatibility with the Charter

In exercising its powers to grant, renew or revoke exemptions from the Equal Opportunity Act, VCAT acts in its capacity as a public authority, so it is bound by obligations under the Charter.

As such, VCAT must consider whether the exercise of its powers limits any relevant Charter rights in a manner that is consistent with section 7(2) of the Charter. In this sense, VCAT must undertake a 'balancing act', weighing up:

  • the nature of the right
  • the importance, purpose, nature and extent of the proposed limitation
  • whether the proposed limitation is reasonably likely to achieve its purpose
  • whether any less restrictive means are available to achieve that purpose. See, for example, Lifestyle Communities Pty Ltd [No 3] [2009] VCAT 1869.

VCAT must also exercise the exemption power consistently with the purpose and objectives of the Equal Opportunity Act.

As stated by Justice Bell in Lifestyle Communities Pty Ltd [No 3] [2009] VCAT 1869 in relation to the exemption power under section 83 of the 1995 Act:

[O]n my reading of the exemption provisions and in the context of the purposes of the Equal Opportunity Act and the legislation as a whole, the discretion to grant an exemption must be exercised taking those purposes into account. It could not be exercised in a way that would defeat them. To interpret the provision otherwise is to allow the exercise of the discretion to be directly disobedient of the parent legislation, which I cannot accept on first principles. In the legislative order of things, the human rights purposes are primary and the exemption power is secondary. The Charter steps in to strengthen the operation of the discretion in these respects by requiring it to be exercised compatibly with human rights [30].

In Whitehorse Community Health Centre Exemption [2014] VCAT 1040 VCAT clarified its approach to applications. In this matter, a Community Health Centre sought to advertise for and employ a Chinese woman in the role of Chinese Community Engagement Officer. VCAT accepted the application raised the section 28 welfare services exception because the role could involve providing a service for special needs under section 88. VCAT considered, however, an exemption was necessary. Although the application related to assistance to the broader Chinese community and women at risk of violence, it did not clearly set out the nature of the inequality. It is necessary to take a cautious approach when an exemption applicant provides only limited evidence. Importantly, VCAT clarified its approach to exemption applications:
  • If VCAT is satisfied the conduct is a special measure or falls within an exception, it will make a declaration to that effect.
  • If there is insufficient material to allow VCAT to be satisfied an exception is not necessary, it will grant an exemption in appropriate cases.

Examples of exemptions granted by VCAT

In Judo Victoria Incorporated [2016] VCAT 535, Judo Victoria applied to VCAT for an exemption under section 89 of the Equal Opportunity Act. The application sought to allow Judo Victoria to discriminate on the basis of age in its black belt ('Dan') gradings policy. VCAT granted an exemption for Judo Victoria to exclude under-17-year-olds from eligibility for black belt grading, and found an exemption was not required for a grading condition that was reasonable and did not discriminate.

VCAT has granted exemptions to co-educational schools to permit them to discriminate based on sex in education and services to work towards gender balance. See, for example, Ivanhoe Grammar School [2016] VCAT 1337 and Caulfield Grammar School [2013] VCAT 178. The exemptions have permitted the schools to advertise to prospective students, offer scholarships and bursary assistance, and structure waiting and enrolment lists to target prospective students of either sex.

VCAT granted an exemption to BAE Systems Australia Defence Pty Ltd (BAE), BAE Systems Australia Defence Pty Ltd [2015] VCAT 230, to allow it to discriminate on the grounds of race. BAE was required to comply with statutory and contractual obligations in controlling access to specified technology or technical data for defence related projects. It sought to be permitted to refuse employment applications by people from specified countries. BAE was granted the exemption on strict terms, which included the requirement to report on its anti-discrimination actions and its reliance on the exemption. Similar exemptions have continued to be granted to defence organisations like BAE or Seeing Machines Limited [2022] VCAT 214.

VCAT has also granted exemptions to allow family violence service providers to limit the offer of employment or access to services to people identifying as women.

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