Exemptions

Applying for an exemption

Applying for an exemption

An application may be made by a person or organisation. It must be made in writing to the Commissioner. The written application should be sent to:

Anti-Discrimination Commissioner
Equal Opportunity Tasmania
GPO Box 197
HOBART TAS 7001

Facsimile: (03) 6165 7515

E-mail: office@equalopportunity.tas.gov.au

The application should include the following information:

  • Who is seeking the exemption?
  • How long the exemption is sought for?
  • What actions, activities or circumstances are to be covered by the exemption?
  • Who will be affected by the exemption if granted?
  • Why is the exemption necessary?
  • Why should an exemption be granted?
  • Are there any factors that may affect the process for consideration of the application?

Who is seeking the exemption?

The application should state who the exemption is to protect, what organisation will be protected from a finding of a breach of the Act if the exemption is granted.

If the application is made on behalf of a corporation or organisation, the application should include information about the nature of the Applicant, eg, is it a for-profit or not-for-profit organisation, what is its core business, etc.

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 three years.

What actions, activities or 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 Act the exemption relates to, eg, what area of activity would the conduct to be protected fall within, what are the relevant prescribed attributes under the Act that the proposed exemption affects, etc.

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. The Commissioner may seek comments from potentially affected persons, groups or organisations before determining whether or not to grant an exemption.

Are there factors that may affect the processing of the application?

The applicant should include information about any factors that may affect the processing of the application, such as:

  • why the application should be processed urgently;
  • why material provided in connection with the application should not be made publicly available as part of any consultation on the proposed exemption;
  • whether the applicant has sought, or intends to seek, an exemption under any other law, including relevant federal discrimination law;
  • whether there is a complaint under the Act, or under a federal discrimination law, in relation to the subject of the exemption application.

What is an exemption?

What is an exemption?

The Commissioner is able to grant exemptions from some parts of the Tasmanian Anti-Discrimination Act 1998 (the Act). Exemptions can only be granted for purposes that further the objects of the Act. Exemptions may be granted subject to conditions set by the Commissioner and are limited to a term of not more than three years.

It would not be consistent with furthering the objects of the Act to grant exemptions simply to certify that discrimination or prohibited conduct can continue, on the basis that the conduct may be protected under an exception to the Act (sometimes called a 'defence') such as unjustifiable hardship or inherent requirements.

It may be consistent with furthering the objects of the Act to grant exemptions on condition that the applicant commits to a plan of improvements that will, over a reasonable time frame, eliminate the discrimination or prohibited conduct.

Exemptions have been granted to confirm that an action is consistent with the promotion of equal opportunity or is a special measure to benefit a group that is disadvantaged or has a special need because of an attribute listed in the Act.

For the period of time the exemption is granted, it may operate as a defence to a complaint lodged about the exempt conduct. Where a person/organisation argues that an exemption applies to the conduct, the onus is on the person/organisation to prove that it properly applies.

Is an exemption necessary?

Is an exemption necessary?

The application should state why an exemption is necessary to prevent a breach of the Act. In particular, applicants should consider whether the proposed activity would be subject to any exceptions in the Act.

If you are not sure, you can contact the Office to discuss the situation.

The application should set out any evidence that supports the reasons the applicant believes the exemption should be granted.

The application should, where possible, explain:

  • how the proposed exemption is consistent with furthering the objects of the Act;
  • why immediate compliance with the Act is not possible or should not be required in this case;
  • any things done or planned by the applicant that are consistent with furthering the objects of the Act;
  • any terms or conditions that further the objects of the Act that the applicant is prepared to meet as a condition of being granted 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;
  • advice sought from professionals and/or representatives in the field concerned;
  • any legal requirements preventing compliance with the Act;
  • any statistical data available to support the purpose and objectives of the exemption;
  • the hardship or negative effect that might result if the exemption is not granted; and
  • measures proposed to minimise or reduce any hardship which maybe faced by people affected by the proposed exemption.

The Commissioner may seek additional information she considers relevant to considering an exemption application.

Grant and renewal of exemption

Grant and renewal of exemption

An application will be assessed on its own merits taking into consideration all relevant circumstances to redress the effects of discrimination and prohibited conduct.

After considering an application for exemption, the Commissioner may:

  • grant an exemption for specified conduct from specific provisions of the Act; or
  • refuse to grant such an exemption; or
  • grant an exemption with conditions.

The Commissioner has the power to revoke an exemption if a condition of the exemption is not fulfilled, vary a condition or impose a condition during the period of the exemption.

An application may be renewed for a further period not exceeding 3 years following a formal request to the Commissioner.

Conditions

The terms and conditions that the Commissioner may make when granting an exemption may include:

  • measures to be implemented by the applicant during the term of the exemption, which will overcome the discriminatory act or practice;
  • measures to be implemented that will improve equality and opportunity to persons of a disadvantaged group;
  • anti-discrimination training to be provided by the applicant to its members, officers, employees and agents to ensure the conditions and objectives of the exemption are being upheld.

How does the Commissioner make a decision?

How does the Commissioner make a decision?

In considering an application, the Commissioner may have regard to:

  • the desirability of certain actions being permitted to redress the effect of past discrimination or prohibited conduct; and
  • any other factor that the Commissioner considers relevant.

An exemption will not be granted where it is deemed not appropriate or necessary in the particular circumstances or where an exception under the Act may already clearly apply.

The Commissioner will also consider the following, as they relate to each application:

  • Whether the exemption is consistent with the objects of the Act.
  • Whether an exemption is necessary and not already clearly covered by an exception under Part 5 of the Act.
  • Whether any other laws prohibit the conduct that is to be exempted.
  • Whether it targets in a positive way a 'disadvantaged' group.
  • Whether an exemption is reasonable and likely to have the beneficial effect planned.
  • Whether or not other persons affected by the exemption will suffer by being excluded.
  • Whether it is reasonable and appropriate for the exemption to be granted.
  • Whether alternative or temporary measures can address the discriminatory practices, processes or procedures that are currently in place.
  • Whether there is a significant public interest in the exemption being granted.

What happens once the Commissioner has made a decision?

What happens once the Commissioner has made a decision?

The Act also requires the Commissioner to publish notice of any grant, renewal or revocation of an exemption in the Tasmanian Government Gazette.

The Act allows for a person to apply for a review of the Commissioner's decision to grant or renew or refuse to grant or renew an exemption. The review is conducted by the Anti-Discrimination Tribunal.

'Applications for Review' must be in writing to the Tribunal and made within 28 days of notice in the Gazette or after receipt of the written statement of the Commissioner's reasons for the refusal.

On receipt of an application for review, the Tribunal may review the decision of the Commissioner and:

  • confirm that the Commissioner made a correct decision;
  • or quash the decision and direct the Commissioner to take such action as the Tribunal considers appropriate.

'Applications for Review' are to be sent to:

The Registrar
Anti-Discrimination Tribunal
GPO Box 1311
HOBART  7001

or

7th Floor
50 Collins Street
Hobart  Tas  7000

Ph:   (03) 6166 4750

Website: Anti-Discrimination Tribunal