Exceptions

What is an exception?

What is an exception?

Exceptions are 'defences' to complaints of discrimination. If a person makes a complaint of discrimination, the person or organisation against whom the complaint is made can argue that the discrimination was not unlawful discrimination, if an exception covers it. The person or organisation must show, on the balance of probabilities, that the exception applies.

Example: A club restricts their membership to elderly people only. A person under, say, 35 seeking to join will have their membership application rejected. They make a complaint to Equal Opportunity Tasmania. The club then argues it caters only for elderly people, so it comes within an exception in the Act. To claim an exception applies, the club must prove its case

What exceptions are listed in the Act?

What exceptions are listed in the Act?

The Act lists general exceptions at sections 23-26 as:

  • actions required by law
  • disadvantaged groups and special needs
  • equal opportunities

Specific exceptions

The Act then lists specific exceptions — that is, exceptions relating to certain attributes or identities — sections 27-55:

  • gender/sex
  • family responsibilities and other attributes
  • sport and gender/sex
  • insurance and superannuation, and gender/sex or marital status
  • sporting activity and age
  • clubs for particular age groups
  • superannuation, insurance and financial services for particular age groups
  • employment based on age
  • education for persons of a particular age group
  • benefits and concessions and age
  • children requiring an adult companion
  • clubs for persons of certain race
  • employment based on race
  • cultural and religious places
  • sporting activity for persons with disabilities
  • insurance and superannuation for persons with disabilities
  • employment based on disability
  • education for persons with disabilities
  • infectious disease
  • access and provision of services
  • employment based on industrial activity
  • irrelevant criminal record in the care of children
  • employment based on religion
  • participation in religious observance
  • employment and political belief, affiliation or activity
  • legal incapacity
  • public purpose in reporting matters relating to race, disability, sexual orientation or lawful sexual activity, and religious belief or affiliation or religious activity

Accompanied by an adult

Accompanied by an adult

Example

A shopping centre is concerned that young children are running up the down escalators, and down the up escalators, knocking over other users. It can seek an exemption for a policy that children may travel on the escalators only in the company of an adult, due to the danger disruptive children are causing to themselves and others.

Actions required by law

Actions required by law

Example

A hotel wants to advertise for a bartender job with an age requirement. It could apply for an exemption to place a job advertisement requiring applicants to be over 18 years, because the law says that no one under 18 is permitted to be in a public place where alcohol is served.

Benefits and concessions - age

Benefits and concessions - age

Example 1

A bus company decides it wants to encourage elderly people to travel on non-peak hours. It can seek an exemption for reducing fares for people over the age of 60 during the hours of 9.00 am to 4.30 pm.

Example 2

A cinema wants to encourage children to attend a special screening of The Wizard of Oz. It reduces the entry fee to all persons accompanying a child, on the basis that they are 'associated with' persons who are of a particular age - namely, the target group 'children'.

Charities

Charities

The Anti-Discrimination Act 1998 (Tas) (the Act) says that charities can include a discriminatory provision in their aims and objects providing exclusively for charitable benefits wholly or partly for persons with an attribute or identity that under the Act would not otherwise be able to be singled out for particular treatment, and can do any act necessary to effect the charitable purpose.

Example:

An organisation wants to provide services to refugees who have fled to Australia from a war-torn country without any possessions. Many have been tortured by secret police. It can apply for a charity exemption, claiming this group of people needs special attention and care, on the basis of race.

Clubs - gender/sex, age, race

Clubs - gender/sex, age, race

Example

In Western Australia in the 1950s, the Coolabah Club was set up in East Perth for Aboriginal members, to reduce the disadvantages faced by Aboriginal people as a minority and to preserve Nyungah culture.

If Aboriginal people wanted to preserve Tasmanian Aboriginal culture through grouping together in a 'club' and keeping membership to Aboriginal people only, they could come under the exemption provisions.

Example

Guides and Scouts want to maintain an age limit on members, so seek an exemption under the Act.

Cultural and religious places

Cultural and religious places

Example 1

Jewish people can claim an exemption so that only Jewish people enter the synagogue, just as Muslims can claim an exemption restricting who may enter the mosque, in accordance with the doctrines of the religion and the need to avoid offending the religious sensitivities of any person of the Jewish or Muslim religion. Similarly with other religions.

Example 2

Aboriginal people can claim an exemption so that an Aboriginal site is restricted to Aboriginal people because that restriction accords with cultural, spiritual/customs and beliefs and is necessary to avoid offending the cultural, spiritual sensitivities of Aboriginal people.

Disadvantaged groups and special needs

Disadvantaged groups and special needs

Example

The Students' Representative Council at the university wants to establish a 'women's officer' position to service the needs of women students. It can seek an exemption from the gender/sex in employment discrimination provisions, arguing that women students are a disadvantaged group on campus or have special needs because they are women - such as sanitary pad/tampon dispensers freely accessible in the women's toilets, or sexual harassment support and counselling.

Employment - political belief, affiliation or activity, industrial activity

Employment - political belief, affiliation or activity, industrial activity

If industrial activity is a genuine occupational qualification for the position, a job can be given on this basis, just as advisory positions to Cabinet Ministers, or staff members of political parties or in their electorate offices can be filled on the basis of political belief, etc.

Employment based on age

Employment based on age

Example 1

A theatre company wishes to stage James Barry's Peter Pan. Youth is a genuine occupational qualification or requirement for the starring role, so the company could discriminate against an applicant of advanced years who sought an audition.

Example 2

A 'youth wage' is payable for a training position in an office or factory. The Act provides for an exception to non-discrimination in employment on the attribute of age, where wage rates are based on age.

Example 3

A charity or job agency wants to set up an employment scheme directed at youth, between the ages of 16 and 24. It brings statistical evidence to show that youth are disadvantaged in the job market so require specific attention and opportunities, which the organisation will provide.

Employment based on disabilities, access to public places

Employment based on disabilities, access to public places

A person may discriminate in employment against or in favour of someone with a disability if:

  • the prospective employee is unable to carry out the inherent requirements of the job
  • or they would require services or facilities applicants without disabilities do not require, and providing them would impose unjustifiable hardship on the employer
  • a person with a disability is required for a dramatic performance or entertainment, or as an artist's or photographic model in production of works of art or visual images requiring a person with a particular disability to make it authentic
  • a person with a disability can best provide the services required for promoting the welfare of persons with disabilities

Unjustifiable hardship can be used to support an exemption from providing access to public places or services. The onus is on the party wanting the exemption.

Employment based on race

Employment based on race

Example

The Tasmanian Arts Centre plans a spectacular series of performances of Jimmy Chai's Bran Neu Day musical. It seeks an exemption to advertise for Aboriginal actors on the basis that this is a genuine occupational requirement for the roles.

Employment based on religion/participation in religious observance

Employment based on religion/participation in religious observance

Example 1

A school wants to employ a teacher to teach the Catholic faith, so may seek an exemption to employ one who believes in Catholicism or belongs to the Roman Catholic Church.

Example 2

The Anglican Church can seek exemption to employ only Anglicans as ministers, priests or bishops, just as a Buddhist Temple is entitled to engage only adherents of Buddhism as Monks, and similarly with all religious institutions.

Equal opportunities

Equal opportunities

Example

A large public company wants to enhance its market performance by appointing women as directors and board members, at the same time as improving its equal opportunity profile. It can seek an exemption for a program of action designed to provide women with experience in board matters and executive functions, excluding men from the plan.

Family responsibilities and other attributes

Family responsibilities and other attributes

The Act allows for an exemption on the ground of family responsibilities, parental status, pregnancy, breastfeeding or marital status if a person with those attributes or identities requires special services and facilities, and it would impose 'unjustifiable hardship' to require those services or facilities to be provided by the organisation or institution seeking the exemption.

Example

The local delicatessen says it cannot provide a babies' change room for parents who stop by to shop, because it doesn't have the space and couldn't afford to build the facility, anyway. It is likely to gain an exemption, but the large department store is unlikely to do so, being unable to prove it doesn't have the space and couldn't afford to put in a change room catering to parents shopping with their young children.

Gender/sex

Gender/sex

Example

A single-gender/sex school or hostel wants to advertise for a teacher or 'cottage parent' of the same gender/sex as the students or residents. Provision for this and single gender/sex, accommodation, residential care positions, facilities, and religious institutions is included in the Act.

Insurance and superannuation - gender/sex, age, disability

Insurance and superannuation - gender/sex, age, disabillity

Insurance and superannuation providers can seek an exemption for schemes discriminating against contributors on grounds of gender/sex, marital status, age or disability, so long as they are complying with prescribed standards under the Superannuation Industry (Supervision) Act 1993 (Cth) or they base it on disclosed actuarial, statistical or other data from a reliable source, and the discrimination is reasonable on the basis of that data and any other relevant factors. The data must be produced in support.

Irrelevant criminal record

Irrelevant criminal record

Example

In the education, training or care of children, people with irrelevant criminal records can be cut out of the selection process, if in the relevant circumstances it is reasonably necessary to protect the physical, psychological or emotional wellbeing of children.

Legal incapacity - age, disability

Legal incapacity - age, disability

Example

A vendor can refuse to sell the house to a child, because the child cannot legally enter into a contract, or to a person who has a recognised intellectual disability or infirmity that precludes them from entering into legal contractual arrangements.

Sport - gender/sex, age, disability

Sport - gender/sex, age, disability

Example

A sports club wants to restrict participation in competitions to youngsters, while a community centre at the local retirement village wants to organise a festive event titled 'grandads race to the sea'.

Each is entitled to seek an exemption for age. Grandmothers may object, resisting their apparent exclusion. Alternatively, the Paraplegic Games can request an exemption to organise sporting events for competitors with disabilities.