Australia: Do Commercial Considerations Count When Applying For A Statutory Exemption?

Key Point

  • While there may be commercial considerations for seeking an exemption, the objects of the anti-discrimination legislation are paramount.

At first glance it might seem at odds with the objectives of anti-discrimination legislation to allow for statutory exemptions to permit discrimination. However, the Western Australian State Administrative Tribunal ("SAT") (and various counterpart tribunals) are empowered to do just that.

Under the Equal Opportunity Act 1984 (WA), the SAT can grant an exemption which allows applicants to discriminate without acting unlawfully if by doing so they are fulfilling the Act's purpose which includes to eliminate discrimination and promote the recognition and acceptance of the equality of all persons.

The Act does not prescribe who exactly can or cannot bring an application for an exemption. This has meant that in the past applicants operating in both the public and private sectors have sought to apply for exemptions.

Accordingly, examples of exemptions which have been granted in the past by the SAT include exemptions to allow:

  • a number of Senior Prison Officer positions to be filled only by women with a view to increasing the number of female senior prison officers at Bandyup Womens Prison
  • an education institution to offer scholarships to indigenous students to encourage them into the field of housing and urban research
  • the promotion of women as deputy principals to remedy the effect of historical discrimination against female teachers in 1987; and
  • for self-defence courses exclusively for women on account of the "common knowledge" of the need for women to protect themselves from violence.

Applying For An Exemption? Factors Taken Into Account

So what factors exactly will the SAT have regard to when considering an application for an exemption?

While there are various factors (such as whether the conduct will advance the objects of the Act, whether it is otherwise prohibited by other laws and whether it will target a discriminated against group) - applicants often fail at the first hurdle in establishing the basis of an exemption. That is, the conduct in question for which an exemption is sought has to be itself discriminatory.

The recent case of Switch Now Pty Ltd t/as Just Be [2007] WASAT 134 illustrates this exact issue. In Switch the SAT considered an application for an exemption in relation to section 20 of the Act, which makes it unlawful to discriminate on the grounds of sex in the provision of goods, services or facilities. The applicant wished to seek an exemption to operate a commercial enterprise with the certainty that what it was doing was not in breach of the Act.

In particular, an exemption was sought so that the applicant could operate a website providing an online job search facility for women. The website was launched to help women find jobs and establish careers and provide employers an avenue to advertise for female talent. The applicant noted that men are not precluded from registering on the website or applying for jobs, nor are they precluded from participating in online forums and discussions.

In making the application, the applicant also informed the SAT that:

"Although Just Be believes it is not in fact unlawfully discriminating against men by operating this service, it wants to put the matter beyond dispute and be able to assure prospective corporate clients in particular that nothing about the service, or their involvement in it, breaches the Act".

In advance of its application, the applicant also sought the support of other organisations for a female targeted service:

"In support of the application, Just Be has provided letters from Security for Women, one of four national women's secretariats funded by the Commonwealth Office for Women; Network Central, a large networking group for Australian business women; The Australian Federation of Business and Professional Women; the Council of Small Business Organisation of Australia, and the Victorian Women's Trust. All support the claim that the needs of men and women are different when it comes to looking for jobs and managing their careers; that women are not as assertive or confident in their skills and experience and career planning as men and are disadvantaged when entering the job market, especially after some time out of the workplace".

Despite the submissions of the applicant, the SAT dismissed the application on the basis that the conduct otherwise did not constitute unlawful discrimination. The SAT was satisfied that the conduct amounted to a special measure intended to achieve equality within the meaning of section 31 of the Act and, therefore, was not unlawfully discriminatory.

Section 31 of the Act provides that it is not unlawful to act in a discriminatory manner if the act or purpose of the act is to ensure that persons of a particular sex have equal opportunities with other persons. The SAT accepted that the purpose of the applicant's business was to ensure that women have equal employment opportunities with men and to afford them access to opportunities to meet their special needs.

Why Apply For An Exemption?

The attractiveness in applying for a statutory exemption is that it provides some level of protection for a business which might wish to engage in an enterprise that potentially may infringe provisions of the Act. Therefore, for the period when the exemption is in place (the SAT can grant an exemption with conditions for up to five years) that enterprise is permitted to discriminate and, with that, is "immunity" from any claims of unlawful discrimination.

Nonetheless, the incentives for applying for an exemption should be assessed against the factors which the SAT (or a like tribunal) would ordinarily have regard to, including, whether there is otherwise some other exception that might apply under the Act. Certainly, the WA Equal Opportunity Commission has expressed the view that commercial reasons alone for targeting a particular market (for example, persons from a particular age bracket) are not sufficient to be granted an exemption. The decision in Switch would also appear to be consistent with the Commission's view.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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