Permanent exceptions to discrimination

Contributed by The Victorian Equal Opportunity and Human Rights Commission and current to 28 June 2019

The Equal Opportunity Act 2010 (Vic) contains exceptions to discrimination. These exceptions operate on an automatic, permanent basis, as opposed to temporary exemptions that the Victorian Civil and Administrative Tribunal (VCAT) may grant. The effect of the permanent exceptions is to deem certain activities, that would otherwise constitute unlawful discrimination, to be lawful conduct under the Equal Opportunity Act. The Equal Opportunity Act covers two exception categories: general and specific.

General exceptions apply to discrimination in all areas of public life, meaning discrimination may be lawfully permitted in certain circumstances in all areas covered by the Equal Opportunity Act. An example is a situation when it is necessary to protect someone's health and safety.

Specific exemptions apply to only a certain area or areas of public life. In employment, for example, an employer providing welfare services that are special measures, or designed to meet the needs of people with a particular characteristic, may discriminate to select employees who best meet the needs of clients. This chapter discuss each of these permanent exceptions.

In addition, a person may apply to VCAT for an order granting them a temporary, specific exemption so they can discriminate in certain circumstances. See Temporary exemptions by VCAT for a further discussion.

VCAT decisions on permanent exceptions and temporary exemptions often overlap. When a person or entity applies for a temporary exemption from the Equal Opportunity Act, VCAT must consider whether such an exemption is necessary, or whether the proposed discriminatory conduct is already lawful under one of the permanent exceptions to discrimination.

General exceptions to discrimination

Exception for things done with statutory authority

Section 75 of the Equal Opportunity Act replicates section 69 of the 1995 Act. It allows a person to discriminate if that discrimination is necessary to comply with, or is authorised by, a provision of a Victorian Act or enactment.(1) Such discrimination is permitted only in very specific circumstances.

The case of H.J. Heinz Company Australia Ltd v Turner (1998) 4 VR 872 (Heinz) illustrates how this provision can operate in practice. Following a series of work-related injuries, Mr Turner returned to work on 'limited duties', which restricted him to the operation of only two machines. Heinz had a policy that did not allow workers who were on modified duties to work overtime because, Heinz said, it could not guarantee the duties performed on overtime would be appropriate for the employee's modified duties. Mr Turner was not permitted to work overtime.

The Equal Opportunity Board of Victoria found the exclusion of Mr Turner from overtime was discriminatory because Heinz had applied a 'blanket policy' and not considered how Mr Turner might be permitted to undertake overtime work.

Heinz appealed this decision and argued its obligations under the Occupational Health and Safety Act 1985 (Vic) (as in force at the time) meant the overtime policy was reasonable, practicable and, most significantly for this exception, one that Heinz was authorised to implement by law. The Court of Appeal found in favour of Heinz.

The Court of Appeal decided Heinz, having introduced an appropriate policy in fulfilment of its legal obligations to provide safe working conditions, was authorised to implement the policy without considering whether its implementation was discriminatory. The only question for determination, therefore, was whether the discrimination occurred because of a bona fide application of the policy. Given Heinz had applied its overtime policy in good faith, the discrimination was not unlawful. See also Garden v Victorian Institute of Forensic Mental Health t/as Thomas Embling Hospital [2008] VCAT 582.

VCAT considered the Heinz decision in the case of Slattery v Manningham City Council [2013] VCAT 1869 (Slattery). In that case, the respondent council had implemented a ban on the complainant accessing council services. The council argued, if discriminating against the complainant, it had done so to comply with the provisions of the Occupational Health and Safety Act 2009 (Vic). That is, it argued it was ensuring, as far as reasonably practicable, the health and safety of staff and members of the public.

VCAT observed the Heinz decisions set out a test of proportionality. In Slattery,the council's actions were not 'appropriately designed' to secure the health and safety of employees, and did not constitute an 'appropriate and commensurate measure of protection from an identified level of risk' [138]. As such, the council could not say it was required to take the action of banning the complainant from council to protect health and safety.

In Butterworth v Independence Australia Services [2015] VCAT 2056 an employer required Ms Butterworth to undergo a medical assessment to establish whether it needed to make any reasonable adjustments after she disclosed she had two medical conditions. Among other claims, Ms Butterworth alleged this request discriminated against her. VCAT found, however, it was reasonable for the employer to assess whether the disclosed conditions required adjustments, and to ask for more information because the disclosure triggered obligations under the Occupational Health and Safety Act 2004 (Vic) to reduce risks to health and safety [88]. The employer's conduct was also necessary to protect the health or safety of any person under section 60 of the 1995 Act [93]. The conduct in this instance was done with statutory authority, while other actions, such as when the employer terminated Ms Butterworth's employment, were not.

In Khalid v Secretary Department of Transport Planning and Local Infrastructure [2013] VCAT 1839 VCAT observed the main controversy was not whether discrimination had occurred but whether it was authorised by legislation [43]. In this case, transport legislation permitted the Secretary to include a condition that overseas students are not eligible for student concessions to use public transport [92].

Exception for things done to protect health, safety and property

Section 86(1) of the Equal Opportunity Act allows for discrimination on the basis of disability and physical features when the discrimination is reasonably necessary to protect the health, safety or property of any person. This protection is for the health, safety or property of the person discriminated against, or for the public generally.

Section 86(2) of the Equal Opportunity Act allows discrimination on the basis of pregnancy when it is reasonably necessary to protect the health and safety of any person (including the person discriminated against).

In Hall v Victorian Amateur Football Association [1999] VICCAT 333 (Hall) Mr Hall was excluded by the Victorian Amateur Football Association (VAFA) from participating in amateur football because he was HIV positive. VAFA said the exclusion of Mr Hall was 'reasonably necessary' in the circumstances, and was permitted under section 80(1) of the 1995 Act (the predecessor to section 86(1) of the Equal Opportunity Act).

In considering the arguments put forward by VAFA, VCAT noted players and officials with whom Mr Hall may come into contact during the game were at risk of infection. While this risk was thought to be low, VCAT held the banning of Mr Hall was not unlawful in light of that risk. VCAT set out factors that should be balanced against each other to determine whether the action is reasonably necessary to protect health and safety. These factors include considering whose health and safety is to be protected by the action, the risks and consequences of action (or inaction), current measures, any non-discriminatory alternatives, and the belief of the respondent.

In Hall, VCAT went on to consider VAFA's Infectious Diseases Policy, which detailed methods for dealing with people and property contaminated by blood and containing hygiene in team areas. VCAT said VAFA had not rigorously and consistently applied this policy but, if VAFA had done so, the risk of infections such as HIV would be reduced. Most notably, because VCAT reasoned applying the policy would better protect the players and officials at risk than simply banning the complainant (which still left open the risk of infection from other HIV sufferers), it found banning Mr Hall was not 'reasonably necessary'. Proper application of the policy was a non-discriminatory means by which VAFA could reduce the identified risk to health and safety without banning Mr Hall. Mr Hall's claim of discrimination, therefore, was upheld.(2)

The factors described in Hall were applied by VCAT in Slattery v Manningham City Council [2013] VCAT 1869. The council in that case had imposed a ban on a member of the public seeking to access council premises. It argued any otherwise discriminatory conduct against the complainant was warranted and justified by the council's duty to protect the health and safety of employees and others.

Applying the evidence to the factors from Hall, VCAT found the exception in section 86 did not apply. However, it suggested 'proportionate and tailored strategies that are informed by research and training, that are regularly reviewed and that provide an appropriate and commensurate measure of protection from an identified level of risk' might not be unreasonable [136].

As discussed above, this exception was also raised in Butterworth v Independence Australia Services [2015] VCAT 2056. In this case, VCAT found an employer did not unlawfully discriminate when it required an employee to undergo a medical assessment after she had disclosed health conditions. The conduct would have been exempted as reasonably necessary to protect Ms Butterworth's health in compliance with the employer's duty to protect the health or safety of any person under section 60 of the 1995 Act.

Exception for special needs

Scope of the exception

The special needs exception under section 88 of the Equal Opportunity Act allows a person to establish services, benefits or facilities to meet the 'special needs' of people with a particular attribute. Further, eligibility for such services may be limited to people with the particular attribute.

The section 88 of the Equal Opportunity Act includes the following example of conduct that would fall within the special needs exception: '[a] community organisation establishes a support group for single fathers in response to research that shows that single fathers have a need for targeted counselling and support'. This example would fit within the special needs exception because there is a demonstrated need for the service, whether or not single fathers are a disadvantaged group within the community.

The special needs exception also specifically covers:

  • rights or benefits granted to women in relation to pregnancy or childbirth (section 88(3)(a))
  • the provision or restriction of holiday tours to people of a particular age or age group (section 88(3)(b)). See, for example, Morris [2007] VCAT 380, in which VCAT expressed doubt that the special needs exception under the 1995 Act would enable a tour organiser to offer women-only tours. In doing so, VCAT noted the exception applied to holiday tours provided for particular age groups, not to holiday tours provided for people with other attributes.

Section 88 of the Equal Opportunity Act replaces section 82(1)(a) of the 1995 Act. Section 82(1)(b) of the 1995 Act was reframed as the special measures provision in section 12 of the Equal Opportunity Act. See also the section on Interaction between 'special needs' and 'special measures' below.

The Equal Opportunity Bill 2010 Explanatory Memorandum indicates a person wanting to rely on this exception must demonstrate, on an objective basis, a need for the services, benefits or facilities. The person must also demonstrate that the measures put in place are objectively capable of meeting that need (page 45).

However, case law suggests the person's state of mind will be centrally relevant to determining whether the services, benefits or facilities were 'designed' for the lawful reason of meeting a group's special needs. VCAT reviewed this authority in Lifestyle Communities Ltd [No 3] (Anti-Discrimination) [2009] VCAT 1869 in relation to section 82(1) of the 1995 Act:

Whether the purpose of a special measure under section 82(1) of the Equal Opportunity Act was to be ascertained subjectively or objectively was considered in Colyer v State of Victoria [Colyer]. Justice Kenny (Justice Brooking and Justice Callaway agreeing) held the exception applied where the service-provider genuinely believed the services would meet those purposes. Her Honour held s 82(1) 'requires the relevant decision-maker to be satisfied that the genuine and not-colourable intention of the service-provider' was to achieve the beneficial purpose. According to her Honour, this belief is ascertained as a fact from the evidence, including inferences to be drawn from 'the nature of the services to be provided and the identity of the recipients of the service'. In summary:

If upon consideration of all relevant matters, the decision-maker is satisfied that the genuine and not colourable intention of the service-provider is to provide the special services for the ends identified in paragraphs (a) or (b) of s. 82(1), then it follows that the services are 'designed' to meet those needs. If the decision-maker is not so satisfied, then it follows that the services are not so designed. That is, if it were to appear that the relevant intention was not held or not genuinely held by the service-provider, then s. 82(1) would not apply [246]-[247].

Colyer was followed by the Full Court of the Federal Court of Australia in Richardson v ACT Health and Community Care Service [2000] FCA 654. Justice Finkelstein (Justice Miles and Justice Heerey agreeing) held the 'purpose' (not 'design') element of the exception in section 27 of the Discrimination Act 1991 (ACT) refers to 'the actual intention of the decision-maker or actor'. But that intention must still be established:

To determine whether the decision-maker holds the requisite state of mind, it will be permissible to enquire whether the conduct in question was capable of achieving equal opportunity (section 27(a)) or meeting special needs (section 27(b)). That enquiry may be necessary for the purpose of establishing that the claimed intention is one that is likely to have been held by the decision-maker. It is not, however, to substitute for an enquiry into the subjective state of mind of the decision-maker an objective criterion. It is merely one of the means by which a claimed subjective intention can be established, in cases where there may be doubt [26].

Interaction between 'special needs' and 'special measures'

The special needs exception complements the promotion of 'special measures' under section 12 of the Equal Opportunity Act. Section 12 provides that taking measures to promote or realise substantive equality for members of a group with a particular attribute is not discrimination. However, as the Equal Opportunity Bill 2010 Explanatory Memorandum makes clear, unlike the special measures provision the 'special needs' provision operates as an exception to discrimination. It may apply regardless of whether the beneficiaries of the services, benefits or facilities experience a particular disadvantage (page 45).

In Georgina Martina Inc [2012] VCAT 1384 (Georgina Martina) in relation to the special measures provision, Member Dea explained:

In order to consider whether conduct is taken for the purpose of promoting or realising substantive equality for members of a group with a particular attribute, it is necessary to identify the inequality which is being sought to be remedied and its cause and then consider how the proposed measure promotes or realises substantive equality [41].

In contrast, the special needs exception enables the establishment of special services, benefits or facilities that meet the special needs of people with a particular attribute, regardless of whether they are disadvantaged. Section 88 requires only 'the special services, benefits or facilities to be identified and for them to be shown to meet the special needs of the relevant group identified by the attribute' (Georgina Martina [57]).

In Georgina Martina VCAT found the special needs exception applied in relation to services provided by a high-security women's refuge to women fleeing family violence (including emergency accommodation and case management). However, VCAT was not satisfied the services could be properly characterised as a special measure, noting:

On the evidence before me, the current application is not concerned with the creation of a service to meet the needs of women, which are not met by services currently available to men and women, in order to achieve equality between men and women. It is a response to the needs of some women, not for reasons based on inequality in the existing options available to all, but because they have a particular need arising from the violence of some men.
 
 
Unlike the counselling example [set out in section 12 of the Equal Opportunity Act], this is not a case where there are family violence services available to men and women which better serve the needs of men. Rather than adjusting or improving on an existing service for the purpose of promoting or realising equality for women, on the evidence this and other refuge services were created as a new initiative because there were no other services available [47]-[48].

For further discussion of this decision (in relation to VCAT's decision to grant a temporary exemption permitting the refuge to employ women only), see the sections on Discrimination in welfare services employment and Welfare measures of accommodation below.

In Pines Community Men's Shed [2013] VCAT 1878 declaration the complainant applied for an exemption to allow it to exclude women from becoming members or part of its committee of management. Men's sheds aim to address issues of men's health, isolation, loneliness and depression, and promote men's social inclusion, including disadvantaged and isolated men, men with disabilities, and men experiencing major life changes. VCAT was satisfied the Men's Shed program is a special service established to meet the special needs of men and, therefore, is within the exception in section 88 of the Equal Opportunity Act.

Similarly, in Anglicare Victoria [2015] VCAT 79 VCAT was satisfied a refuge providing secure accommodation to women experiencing family violence and trauma caused by sexual assault was within the exception in section 88, because the refuge was established to meet the special needs of women. Accommodation and other services in the circumstances could be provided to women only without the need for an exemption.

In 2015 several cases raised questions about the application of the section 89 exemptions and section 12 special measures. These cases appeared to widen the application of section 12 by making special measures declarations about conduct that directly benefited groups not experiencing substantive inequality. The decisions appeared to suggest section 12 does not have to achieve substantive equality for members more generally of a group with an attribute.

In Trafalgar High School [2015] VCAT 1647 a school applied for an exemption under section 89 of the Equal Opportunity Act to employ a male to provide one-on-one support to a male student with paraplegia. The role would include assistance with access to the toilet and other self-care needs. The school argued a male employee was needed for reasons of the strength required to provide physical assistance, and the student's cultural and religious beliefs. VCAT held the application was 'misconceived' and declared the school's conduct a 'special measure' under section 12(1) of the Equal Opportunity Act.

In Yooralla [2015] VCAT 1647 a non-profit disability service organisation applied for an exemption to enable it to advertise for and employ age and sex specific people for Disability Support Worker roles that would be deployed in response to client requests. VCAT made a special measures declaration and held the conduct promoted and, in many cases, realised substantive equality for clients, preserving their dignity.

In Plenty Valley Community Health [2015] VCAT 1647 the complainant (a provider of primary health care services) applied for an exemption to advertise for and employ a woman in the role of Arabic/Persian interpreter. The complainant was concerned if it failed to provide female interpreters, that female clients would have impeded access to its services. VCAT found the conduct promoted equality for clients wishing to access this service, and accounted for the religious and cultural practices of the clients. The conduct did not require an exemption under section 89 of the Equal Opportunity Act because it was a 'special measure' under section 12(1).

The decision of Waite Group [2015] VCAT 1647 (discussed in Requirements for a special measure) addressed these issues and provides detailed guidance on the requirements for a special measure and the type of evidence that might be relevant to an assessment for a special measure.

Specific exceptions to discrimination

Exception for age benefits and concessions

Under section 87 of the Equal Opportunity Act, it is permissible to discriminate in providing benefits to a person based on age. This exception includes, for example, providing concessionary tickets to an event.

Exceptions relating to superannuation and pensions

Discrimination by retaining an existing discriminatory superannuation fund condition

Section 78 of the Equal Opportunity Act allows a person to discriminate by retaining an existing discriminatory superannuation fund condition for a person who was a member of the fund at 1 January 1996 or who became a member of that fund within a period of 12 months after that date.

The courts have not yet tested the Equal Opportunity Act provisions relating to superannuation exceptions. However, they may take the approach demonstrated by the decision of the Queensland Anti-Discrimination Tribunal in Lundbergs v Q Super [2004] QADT 12. In that case, Lundbergs - a former police officer who suffered from a major depressive disorder and other drug-induced disorders - alleged the Queensland Government Superannuation Office (Q Super) discriminated against him on the basis of his impairment by paying his superannuation payment as a lump sum to the Public Trustee (rather than him) after he was dismissed from the police force. Q Super argued Lundbergs was not capable of accepting responsibility for handling a large financial payment. It acknowledged it had discriminated against Lundbergs by requiring the payment be made to the trustee, but said it was exempted by the Anti-Discrimination Act 1991 (Qld). Section 63 of that Act provides it was not unlawful to discriminate on the basis of an impairment by imposing a condition that is reasonable given any other factors. In this case, the superannuation fund's trust deed gave the trustees discretion to determine how benefits would be paid in cases of a fund member's mental ill health or incapacity. The Tribunal held the provision's wording did not impose a specific condition within the meaning of that Act, so Q Super could not rely on the Act to exempt its actions. That is, it was not 'reasonable' for Q Super to rely on the exemption because the provisions of the trust deed were too broad and did not define types of ill health or incapacity, distinguish between degrees of ill health or incapacity, or set out clear circumstances for the exemption's use (Lunsbergs v Q Super [2004] QADT 12 [66]).

Accordingly, the Tribunal held unlawful discrimination had occurred in this case. While findings on exceptions depend on the facts of each case, this case demonstrated that this exception does not constitute a blanket exception. The courts are likely to consider the particular terms of the superannuation scheme.

Discrimination on the basis of age in superannuation

Under section 79 of the Equal Opportunity Act, a person is permitted to discriminate against another on the basis of age by imposing superannuation fund conditions in a number of circumstances. This clause closely resembles section 73 of the 1995 Act, except for paragraphs 79(1)(c) and 79(1)(d), which were amended to bring the allowed circumstances for discrimination into line with those in the Age Discrimination Act 2004 (Cth).

Section 79(1) of the Equal Opportunity Act now permits discrimination on the basis of age by imposing conditions in relation to superannuation if:

c) the discrimination is--
(i) based on actuarial or statistical data on which it is reasonable for the person to rely; and
 
(ii) reasonable having regard to that data and any other relevant factors; or :
 
d) in the case where no actuarial or statistical data is available and cannot reasonably be obtained, the discrimination is reasonable having regard to any other relevant factors.

The person relying on the exception has the burden of demonstrating the basis of exception.

Exception for pensions

Section 77 of the Equal Opportunity Act provides that the Part 4 provisions relating to discrimination do not affect discriminatory provisions relating to pensions. It re-enacts section 71 of the 1995 Act.

Exceptions for competitive sporting activities

Exclusion on the basis of sex and gender identity

The Equal Opportunity Act contains exceptions that permit sporting competitions to operate on a single-sex or single-gender basis for competitors over 12 years of age, if certain criteria are met.

Under section 72(1) the first exception applies to only competitive sporting activities for which 'strength, stamina or physique of the competitors' is relevant. VCAT found, for example, that strength, stamina and physique are relevant to participation in competitive calisthenics. In McQueen v Callisthenics Victoria Inc [2010] VCAT 1736 VCAT held it was lawful to exclude Mr McQueen (a 33-year-old man) from callisthenics competitions that were open to women over 14 years of age. In that case, Vice President Lacava said:

I am satisfied the respondent has proved to the appropriate standard there are differences between the sexes in strength, stamina and physique which can affect participation of females in the sport of callisthenics which has developed as a sport participated in by women only above the age of 14 years. In its execution, competitive callisthenics requires skill, endurance, strength and coordination. It requires a high degree of physical dexterity. It is designed entirely around the female form. The introduction of males into the sport would be such as to materially change the way the sport is conducted and thus have a significant effect upon the roles of those who participate in it [58].

VCAT determined the question of the relevance of strength, stamina or physique by considering whether 'if both sexes were to compete against each other, the competition would be uneven because of the disparity between the strength, stamina or physique of men and women competitors' (see South v Royal Victorian Bowls Association [2001] VCAT 207 [35]). Lawn bowls has been found to be a sport in which strength, stamina or physique is not relevant in this sense. See, for example, Royal Victorian Bowls Association Inc [2008] VCAT 2415. In later cases involving lawn bowling, exemptions were granted under the 1995 Act's equivalent to section 89 of the Equal Opportunity Act because certain events were part of the elite pathway leading to national and international championships.

In section 72(1A) a second exception applies to permit the exclusion of persons of a particular sex from a competitive sporting activity where the exclusion is necessary for progression to an elite, national or international competition or level of competition.

Third, a permanent exception under section 72(1B) applies for the exclusion or restriction of persons of a particular sex to facilitate participation by people of the non-excluded sex. However, the exclusion must be reasonable, regarding:

  • the nature and purpose of the activity
  • the consequences of the exclusion or restriction for people of the excluded or restricted sex
  • whether people of the excluded or restricted sex have other opportunities to participate in the activity.

The second and third exceptions noted above were introduced into the Equal Opportunity Act by an amendment in 2011. According to the Explanatory Memorandum to the amending Bill, the new exceptions are intended to apply beneficially - for example, the participation exception is intended to be available only when the exclusion or restriction is designed to encourage stronger participation in sport by a particular sex when participation has been a problem (page 7).

The Second Reading Speech highlighted, as a reason for the new exception, concerns about dwindling numbers in some competitive sports (such as lawn bowls) in which single-sex competitions were not automatically lawful. According to the Second Reading Speech, 'the needs of those who want to play with members of their own sex' were not being adequately addressed, which had led to participants leaving the sport.(3)

Age and ability

Section 72(2) of the Equal Opportunity Act also allows competitive sporting activities to be restricted to people who can effectively compete, people of a specified age or age group, or people with a general or particular disability.

Exceptions on the basis of religion

The Equal Opportunity Act contains a broad range of exceptions that apply to the activities of religious bodies. These exceptions relate to who may become members of a religious order, the activities of religious schools, and other conduct that is reasonably necessary to comply with a person's religious doctrines, beliefs or principles.

What is a religious body?

For these exceptions, section 81 of the Equal Opportunity Act defines 'religious body' to mean:

a) a body established for a religious purpose; or

b) an entity that establishes, or directs, controls or administers, an educational or other charitable entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles.
 

Religious officials

Section 82 of the Equal Opportunity Act provides that religious bodies may, on the basis of any protected attribute, discriminate in:

a) the ordination or appointment of priests, ministers of religion or members of a religious order; or
 
b) the training or education of people seeking ordination, or appointment of priests, ministers of religion or members of a religious order; or
 
c) the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice.

'Religious order' is not defined in the Equal Opportunity Act. In Tassone v Hickey [2001] VCAT 47 VCAT considered the exception is not confined to the selection or appointment of a parish priest, or the selection by a parish priest of some parishioners and not others to participate in a religious observance or practice. Rather, it considered the exception also covers a decision by a parish priest that no-one in the parish is to participate in a particular religious observance or practice [42].

Religious schools

Section 83 of the Equal Opportunity Act authorises some types of discrimination in relation to religious schools. This exception is slightly different from the religious schools exception that applies under section 76 of the 1995 Act.

The religious schools exception under section 83(1) applies to 'a person or body, including a religious body, that establishes, directs, controls, administers or is an educational institution that is, or is to be, conducted in accordance with religious doctrines, beliefs or principles'.

The exception covers conduct 'in the course of establishing, directing, controlling or administering the educational institution', so long as the conduct:

a) conforms with the doctrines, beliefs or principles of the religion

b) is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.

This exception does not apply in relation to all attributes. It is limited to discrimination on the basis of religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity.

Religious beliefs or principles

The Equal Opportunity Act also contains a broad exception in section 82(2) that permits discrimination by religious bodies on the basis of a person's religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity, so long as the conduct:

a) conforms with the doctrines, beliefs or principles of the religion

b) is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.

This broad exception applies only to religious bodies. It does not extend to discrimination on the basis of all attributes. That is, it does not permit discrimination on the basis of age, employment activity, disability, industrial activity, breastfeeding, pregnancy, physical features, political belief/activity or race.

There is also a broad exception for discrimination by any person (including but not limited to a religious body) whose conduct is 'reasonably necessary' for them 'to comply with the doctrines, beliefs, or principles of their religion'. This exception also applies to discrimination only on the basis of religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity.

The term 'reasonably necessary' requires an objective assessment of whether the discrimination is necessary to conform with the doctrines, beliefs or principles of the person's religion.

Although decided under the 1995 Act, Cobaw Community Health Services v Christian Youth Camps Ltd [2010] VCAT 1613 (Cobaw v CYC) provides guidance on the way in which some of these concepts are likely to be applied.(4)

This case concerned a refusal by the Phillip Island Adventure Resort to accept a booking by the Cobaw Health Service (Cobaw). Operated by Cobaw, the WayOut project is a youth suicide prevention initiative that targets same sex attracted young people in rural Victoria.

In June 2007 Cobaw contacted Phillip Island Adventure Resort to make a booking for a two-day youth forum. Cobaw claimed the resort rejected its booking because of the sexual orientation of the proposed attendees. It lodged a complaint that this refusal contravened the 1995 Act.

The resort's operator, Christian Youth Camps (CYC), denied it had discriminated against Cobaw. It argued, if it had discriminated, this conduct was permitted by religious exemptions under the 1995 Act. The Christian Brethren Trust own the resort and CYC.

CYC sought to rely on the exemptions in section 75 of the 1995 Act - namely, that CYC was a 'body established for religious purposes' and that its refusal of Cobaw's booking was:
  • in conformity with the doctrines of its religion
  • necessary to avoid injury to the religious sensitivities of people of its religion.

CYC also sought to rely on the exemption under section 77 of the 1995 Act - namely, that the refusal of Cobaw's booking was necessary for CYC to comply with genuine religious beliefs or principles.

Justice Hampel found CYC discriminated against Cobaw in refusing to accept its accommodation booking on the basis of the sexual orientation of the proposed guests.

Justice Hampel found CYC was not a body established for religious purposes so could not rely on the exemptions in section 75 of the 1995 Act. She considered it relevant that CYC provided camping facilities to both secular and religious groups, and that CYC's marketing materials did not mention the Christian Brethren religion or Christian Brethren Trust [254].

Justice Hampel did not need to consider whether the booking refusal was conduct that conformed with religious doctrine or was necessary to avoid injury to religious sensitivities. Given the extent to which these matters were argued before her at hearing, however, her Honour set out her findings on those matters.

What 'doctrines of the religion' means

In determining that the 'relevant religion' was the Christian Brethren denomination of Christianity, Justice Hampel followed the case of OV and OW v Members of the Board of the Wesley Mission Council (2010) NSWCA 155.

In establishing what were doctrines of the Christian Brethren's religion, Justice Hampel relied on the creeds, the declarations of faith, and a statement of fundamental beliefs and doctrines set out in the Christian Brethren's 1921 Trust Deed.

Justice Hampel found beliefs about marriage, sexual relationships and homosexuality did not constitute a doctrine of the religion of the Christian Brethren. In making this finding, her Honour found compelling:

[T]he absence of any reference to marriage, sexual relationships or homosexuality in the creeds or declarations of faith which Christians including the Christian Brethren are asked to affirm as a fundamental article of their faith. (Cobaw v CYC [305])

What 'conforms with the doctrines of the religion' means

Justice Hampel was not satisfied the booking refusal conformed with the doctrines of the religion, even if (1) CYC was a body established for religious purposes, and (2) beliefs about marriage, sexual relationships and homosexuality amounted to a doctrine of the Christian Brethren religion [308].

Her Honour noted conformity with their beliefs about sex and marriage requires the Christian Brethren to restrict their own sexual activity to sex within marriage. She found, however, no evidence that such conformity requires the Christian Brethren to avoid contact with people who are not of their faith and who do not subscribe to their beliefs about God's will in respect of sex and marriage.

The concept of 'conforming' suggests the doctrine requires, obliges or dictates the person to act in a particular way. In this way, it requires a clear causal connection between the action and the doctrine [315].

In finding CYC failed to establish the booking refusal conformed with the doctrines of the religion, Justice Hampel referred to the decision of McFarlane v Relate Avon Limited [2010] EWCA Civ 880, in which Lord Justice Laws held the right to freedom of religious belief does not confer a right on members of a religion to impose their beliefs on a secular society (Cobaw v CYC [309]).

Actions to avoid injury to the religious sensitivities of people of the religion

In this case, Justice Hampel found the relevant sensitivities are not the subjective sensitivities of one person, but the sensitivities common to adherents of the religion. Her Honour said these sensitivities are the common religious sensitivities, which are to be contrasted with the adherents' social or cultural sensitivities, for example [329].(5)

Her Honour found it compelling that CYC had not taken steps to prevent non-married people who engaged in sexual activity from staying or engaging in sexual activity at the resort. Justice Hampel found the logical conclusion of CYC's failure to take such steps was that 'it was not necessary to avoid injury to the religious sensitivities of the Christian Brethren in respect of sex and marriage, to refuse bookings to same-sex attracted people, or people who engaged in sexual activity outside marriage' [344].

To avoid injury to the religious sensitivities of the Christian Brethren, if it was not necessary to exclude from the resort other same sex attracted people, or people who had engaged or might engage in sex outside marriage, then it was not necessary to exclude the WayOut group on that ground.

Genuine religious beliefs or principles

In determining the applicability of the exemption under section 77 of the 1995 Act, her Honour found the relevant question was 'whether the refusal was necessary to comply with the genuine religious beliefs or principles' of CYC.

Justice Hampel found CYC personnel's genuinely-held beliefs about marriage, sexual activity and sexual orientation were based on their beliefs as members of the Christian Brethren, and that these beliefs were (for the purposes of section 77 of the 1995 Act) genuinely held. However, CYC had not claimed an exception under this section, for the reasons identified in above, including the manner in which the adventure resort is operated and marketed to secular and religious groups. Her Honour declared CYC had committed discrimination in breach of the 1995 Act and ordered CYC to pay compensation of $5000 for the hurt and distress caused.

On appeal to the Supreme Court of Appeal, Cobaw Community Health Service v Christian Youth Camps Ltd [2014] VSCA 75, President Maxwell held it was open to VCAT to find CYC was not a body established for religious purposes. Material advertising CYC's resort stated it could accommodate a full range of educational camps, conferences and seminars, not indicating any overt Christian connection. The resort was run as a commercial venture, with most of its business being secular [214]-[217]. If a body is to satisfy this statutory exception, then each of its purposes (or at least its purposes taken as a whole) must be religious purposes. In other words, its purpose(s) must have an essentially religious character [230].

The Court of Appeal also found it was open to VCAT to find the booking refusal was not necessary 'to avoid injury to the religious sensitivities' of Christian Brethren people [304]. Further, the evidence showed the religious beliefs held by the staff member who refused the booking and the CYC did not make it necessary to refuse the booking. None of the conduct of CYC's resort business reflected a 'doctrine' prohibiting the affirmation of same sex attraction in rules and procedures or advice in booking information [290].

Exceptions relating to employment

Reasonable adjustments for a person or employee with a disability

Under section 20 an employer may discriminate against a person or an employee on the basis of their disability if adjustments are needed for the person to perform the genuine and reasonable requirements of the employment, and if either:
  • the adjustments are not reasonable, given the facts and circumstances set out in section 20(3) of the Equal Opportunity Act, or
  • the person or employee cannot adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made, given the facts and circumstances set out in section 20(4) of the Equal Opportunity Act.
To determine whether an adjustment is reasonable, all relevant facts and circumstances must be considered. The Equal Opportunity Act outlines the following factors in section 20(3):
  • the person's or employee's circumstances, including the nature of his or her disability
  • the nature of the employee's role or the role
  • the nature of the adjustment required
  • the financial circumstances, size and nature of the employer
  • the consequences and effect of making the adjustment on the workplace and the employer's business.
The Equal Opportunity Act includes these examples of reasonable adjustments:
  • providing a ramp for access to the workplace, or a particular software package for computers
  • modifying work instructions or reference manuals
  • allowing the person or employee to be absent during work hours for rehabilitation, assessment or treatment
  • allowing the person or employee to take more frequent breaks.
Under section 20(4), to determine whether a person or employee can adequately perform the genuine and reasonable requirements of the employment, all the relevant facts and circumstances must be considered. These factors may include:
  • the person's or employee's training, qualifications and experience
  • the person's or employee's current performance in the employment.
The section on Reasonable adjustments for people with a disability discusses these factors (see Dziurbas v Mondelez Australia Pty Ltd [2015] VCAT 1432).

Discrimination in domestic or personal services

A person may discriminate in relation to employment involving domestic and personal services, including childcare services, in their own home.

This permanent exception extends beyond an individual who employs somebody to work in their own home. It also covers employers, such as employment agencies, who provide staff to perform home-based domestic or personal care services when the client makes a particular request. Section 24 of the Equal Opportunity Act sets out the following example:

An agency employs people to provide personal care services. A woman contacts the agency and requests that it provide a carer to assist her with personal care in her home. The woman tells the agency that the carer must be female. The agency may discriminate in determining who should be employed to provide personal care to the woman as the services will be provided in the woman's home, and she has specifically asked for a female carer.

Discrimination in the care of children

Section 25 of the Equal Opportunity Act provides a permanent exception for employment that involves the care, instruction or supervision of children, if the discrimination is reasonably necessary to protect the physical, psychological or emotional wellbeing of the children.

This exception extends to the prohibitions on discriminating against employees and job applicants (section 16 and section 18 of the Equal Opportunity Act). However, it does not extend to post-secondary education providers.

VCAT considered the exception (as it appeared in the 1995 Act) in an application by the American Institute for Foreign Study (AIFS). In American Institute for Foreign Study [2000] VCAT 432 AIFS sought a temporary exemption from the 1995 Act to enable it to discriminate against Australian candidates for positions as 'au pairs', or nannies, in the United States. Due to US visa requirements, candidates had to be of a certain age and physical fitness, and had to disclose other personal characteristics (such as their nationality and place of birth) because these factors were relevant to the visa fees payable.

VCAT said neither the permanent exception relating to domestic or personal services, not the one relating to the care of children entirely covered the AIFS proposal. It considered, however, the proposal was 'within the spirit' of these exceptions. On that basis, VCAT decided to grant AIFS a temporary exemption to discriminate on the terms sought.

Discrimination for genuine occupational requirements

Section 26 of the Equal Opportunity Act allows employers to limit the offer of employment to people of one sex if that sex is a genuine occupational requirement or is necessary for authenticity or credibility in art or performance. This permanent exception applies to only certain protected characteristics, in certain circumstances. It does not apply generally, or in relation to all characteristics that are protected by law.

Section 26(2) provides examples of circumstances when it may be a 'genuine occupational requirement' for a person to be of a particular sex, including when the employment:
  • can be performed only by a person with particular physical characteristics other than strength or stamina
  • needs to be performed by a person of a particular sex to preserve decency or privacy
  • includes searching the clothing or bodies of people of that sex (for example, security staff required to conduct physical searches)
  • includes entering a lavatory ordinarily used by people of that sex while it is in use by people of that sex (for example, some cleaners)
  • includes entering areas ordinarily used only by people of that sex while those people are in a state of undress (for example, a sales assistant working in a women's lingerie department).
The threshold test for 'genuine occupational requirements' under section 26 of the Equal Opportunity Act differs from the test for 'inherent requirements of the job' under the Disability Discrimination Act 1992 (Cth), which is not defined. Accordingly, federal case law on the 'inherent requirements' has limited relevance to section 26 and should be used cautiously. In Davies v State of Victoria (Victoria Police) [2000] VCAT 819 federal cases involving significantly different Disability Discrimination Act provisions could not be applied to the case.

Further, for a dramatic or artistic performance, entertainment, photographic or modelling work, or any other employment, section 26(3) allows employers to limit the offering of employment to people of a particular age, sex or race, or to people with or without a particular disability, if the discrimination is necessary for 'authenticity or credibility'.

An example of employment other than dramatic or artistic related work that may require discrimination 'for authenticity' is the employment of an Indigenous person to provide educational information about Indigenous culture at a cultural centre, as outlined in the Equal Opportunity Bill 2010 Explanatory Memorandum.

For a dramatic or artistic performance, photographic or modelling work, or any similar employment, section 26(4) allows employers to discriminate on the basis of physical features in the offering of employment. The term 'similar employment' in this subsection limits the exception to dramatic or artistic related work for which a person's physical features are relevant, as explained in the Bill's Explanatory Memorandum (page 24).

Cases do not provide definitive guidance on how much of a job needs to fall within the relevant exception for the exception to apply. Even situations envisaged by the Equal Opportunity Act, such as fitting of clothes as a genuine occupation requirement under subsection 26(2)(b), are likely to involve other activities such as stock maintenance or cash register sales. Further case law is needed to clarify the scope of these provisions.

Discrimination in political employment

Section 27 of the Equal Opportunity Act allows discrimination on the grounds of political belief or activity in the offering of employment to a person as a ministerial adviser, member of staff of a political party, or member of the electorate staff, or any similar employment. According to the Explanatory Memorandum of the Equal Opportunity Bill, this exception is intended to apply only to employment for which a person's political belief or activity is relevant, and employment with the Australian Electoral Commission (page 24).

Discrimination in welfare services employment

Section 28 of the Equal Opportunity Act allows an employer to limit an offer of employment to people with a particular attribute when the employment is to provide services that:
  • are special measures under section 12 of the Equal Opportunity Act
  • meet the special needs of people with a particular attribute under section 88 of the Equal Opportunity Act, if people with that attribute can most effectively provide those services.
According to the Equal Opportunity Bill 2010 Explanatory Memorandum, section 28 does not define the circumstances in which a service 'can be provided most effectively' by a person with the same attribute as the target group because there can be range of circumstances. Perhaps only a person from the target group has insight into the group's particular issues, or it may not be culturally appropriate to have someone not from the target group provide the services, or the target group may have a fear or mistrust of anyone who is not a group member (page 25). However, this discrimination should be based on more than a personal preference or prejudice.

In Georgina Martina Inc [2012] VCAT 1384 (Georgina Martin) the complainant - a high security 24-hour women's refuge - requested a temporary exemption to employ only women, to offer services only to women and their children, to provide accommodation only to women and their children, and to advertise these matters. The complainant indicated to VCAT that it intended to appoint only women to all roles within the organisation, rather than just as counsellors or other frontline staff.

Before granting the temporary exemption, VCAT had to consider whether such a temporary exemption was necessary, or whether the Equal Opportunity Act already authorised the proposed discrimination as a special measure or as one of the permanent exemptions, including section 28. The Victorian Equal Opportunity and Human Rights Commission (the Commission) intervened to provide assistance to VCAT on the scope of and interaction between section 12 (special measures), section 60 (welfare measures) and section 88 (special needs).

Member Dea considered the proposed discrimination in providing accommodation and services was covered by permanent exceptions to discrimination, particularly section 60 (welfare measures) and section 88 (special needs) of the Equal Opportunity Act. She concluded, however, that the permanent exception under section 28 did not permit the organisation to restrict employment to women across all areas of its operations, because that conduct would go beyond what was necessary to 'most effectively' provide services to the organisation's clients. Member Dea said:

Arguably, the available material does not sufficiently prove that the services can be provided most effectively by women rather than men. While the arguments put by the applicant and the Commission appear fair and reasonable, they are not supported by objective evidence about the effectiveness of service delivery by women as compared with men. That evidence could take the form of a survey which shows that clients would not wish to have any interactions with any men irrespective of their role. Evidence that men had been employed and had been less effective in their roles than women might be sufficient. Georgina Martin [66]

In considering whether the proposed conduct was covered by section 28, Member Dea said:

The front line roles whose focus is assisting women who seek refuge in a state of distress and on accessing supports and services in the aftermath of violence would most likely fall within section 28. However, the material before me does not allow me to conclude that all roles within the applicant organisation can be provided most effectively by women and so I am not persuaded that section 28 would operate with the effect that the employment of women only throughout the organisation could not be found to involve prohibited discrimination. In another case, evidence may be available such that the exception is proven to clearly apply to all roles. Georgina Martin [69]-[70]

VCAT was not convinced the proposal to restrict employment to women fell within the exception in section 28. It decided, however, to grant the organisation a temporary exemption to allow this discrimination, in accordance with its powers under section 89 of the Equal Opportunity Act. In doing so, VCAT considered the granting of the exemption was consistent with the Charter of Human Rights and Responsibilities (the Charter) and amounted to a reasonable limitation on the right to equality. The section on Temporary exemptions by VCAT deals with VCAT's power to grant temporary exemptions.

In Domestic Violence Victoria (Anti-Discrimination Exemption)(6)

VCAT granted an exemption for Domestic Violence Victoria Inc to advertise for and employ only women. In granting the exemption, VCAT noted a determinative factor was that any staff member could be the first point of contact for women seeking direct assistance in relation to family violence. Also an important consideration, the complainant was involved in projects requiring its staff to liaise closely with victims of family violence, and believed clients would not use its services if male employees were present. Further, VCAT considered the limit imposed by this exemption was reasonable and justified under the Charter.

In Anglicare Victoria [2015] VCAT 79 VCAT was satisfied no exemption was required in a women's refuge's application to employ only women in case management and support worker roles requiring direct contact with clients who had suffered trauma from family violence and sexual assault. Because the discriminating conduct was a welfare service, it fell within the exception in section 28 of the Equal Opportunity Act.

Discrimination in youth wages

Section 28A of the Equal Opportunity Act provides for an exception that enables an employer to discriminate on the basis of age when paying an employee under the age of 21 years. It authorises the payment of junior rates of pay under certain instruments (for example, in a modern award).

According to the Explanatory Memorandum to the Equal Opportunity Amendment Bill 2011, the exception intends to clarify that the aged based payment of an employee under the age of 21 years does not amount to unlawful discrimination (page 4).

Discrimination in early retirement schemes

Under section 29 of the Equal Opportunity Act, an employer is not unlawfully discriminating if they consider the age of an employee, together with that employee's eligibility to receive a superannuation retirement benefit, when deciding the terms on which to offer the employee an incentive to resign or retire.

Reasonable terms of an occupational qualification

Under section 37 of the Equal Opportunity Act, a qualifying body is not unlawfully discriminating if they set reasonable terms for an occupational requirement, or make reasonable variations to those terms, when a person cannot meet the terms or requirements of an occupational qualification because of an impairment. In this case, the discrimination means the person can then practise the profession, carry on the trade or business, or engage in the occupation or employment to which the qualification relates.

Exceptions relating to education

Educational institutions for particular groups

Section 39 of the Equal Opportunity Act allows an educational institution that operates a school for students of a particular belief, sex, race, age or disability to exclude students who are not of that particular group. The party who seeks to rely on this exception has the onus of establishing that the exception applies.

In Arora v Melton Christian College ,(7) the complainant, a Sikh boy, alleged the Melton Christian College discriminated against him by preventing him from wearing a patka to school. Melton Christian College relied on the exemption under section 39. While Melton Christian College is a Christian school, it has an open enrolment policy, which means it accepts enrolments from students of other faiths (a little over 50 per cent of the school community were non-Christian). VCAT held the school could not rely on section 39 because, even if the school operates mainly for the benefit of students from one religious belief, this section does not allow the school to exclude people with some religious beliefs but not others, or to exclude people who have particular religious beliefs (in this case, Sikhs who wear patkas).

Standards of dress and behaviour

An educational authority is permitted under section 42 of the Equal Opportunity Act to set and enforce reasonable standards of dress, appearance and behaviour for students.

In assessing whether the standard is reasonable, section 42(2) provides that the views of the school community are a relevant but not determinative factor.

According to the Equal Opportunity Bill 2010 Explanatory Memorandum, section 42 is not intended to allow schools to apply standards in a way that unreasonably restricts the rights of students and teachers to adhere to religious dress codes, for example, by wearing a turban or hijab (page 30).

International treaties and case law have been significant in the development of this and similar exceptions. See, for example, Begum, R (on the application of) v Denbeigh High School [2006] UKHL 15 (the Begum case). In this case, the House of Lords found the school did not interfere with a pupil's right to manifest her religion by refusing her to wear a jilbab to school because 'Article 9 [of the European Convention on Human Rights on the right to freedom of thought, conscience and religion] does not require that one should be allowed to manifest one's religion at any time and place of one's choosing'. The majority decision turned on the fact that the claimant chose to attend a school that did not allow a jilbab to be worn, when three other schools in the area did allow for the jilbab in their dress code. This case was followed by the case of R (on application of X) v Head teachers of Y school and Governors of Y School [2007] EWHC 298.

In Arora v Melton Christian College [2017] VCAT 1507 the complainant was excluded from Melton Christian College due to the school's uniform policy. The complainant's religious beliefs and practices prevented from him from being able to comply with the school's uniform policy, which prohibited the wearing of religious headwear. VCAT held the school could not rely on section 42 - which allows educational authorities to set and enforce reasonable standards of dress, appearance and behaviour for students - because this section does not allow educational authorities to exclude from schools a person seeking to be admitted as a student when that person cannot comply with a uniform policy due to their religious belief or activity.

Age-based admission schemes and age quotas

Under section 43 of the Equal Opportunity Act, educational authorities are allowed to select students for a program on the basis of an admission scheme that has a minimum qualifying age or that imposes quotas for students of different age groups. According to the Equal Opportunity Bill 2010 Explanatory Memorandum, this exception is intended to enable educational authorities to ensure schools cater for the different developmental and learning needs of students of different ages (pages 30-31).

Exceptions relating to the provision of goods and services, and the disposal of land

Goods and services: insurance

Section 47 of the Equal Opportunity Act sets out limited circumstances in which insurers may discriminate against a person by refusing to provide an insurance policy.

Circumstances in which an insurer can discriminate in providing insurance include when the discrimination is:
  • permitted under Commonwealth anti-discrimination legislation. Specifically, Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth) or Age Discrimination Act 2004 (Cth).
  • based on actuarial or statistical data on which it is reasonable for the insurer to rely
  • reasonable having regard to that data and any other relevant factors
  • reasonable in terms of other relevant factors when no actuarial or statistical data is available or can reasonably be obtained.
In Ingram v QBE Insurance (Australia) Ltd [2015] VCAT 1936 QBE Insurance denied Ms Ingram's claim for cancellation costs after she cancelled a trip due to experiencing a first episode of a serious mental illness. QBE relied on the section 47 exception, arguing it could exclude people with a mental illness from being able to claim under its travel insurance policies. QBE said the exclusion was based on statistical data on which it was reasonable to rely, that it had considered statistical data as a basis for maintaining the exclusion in the travel policy, and statistics showed a high risk of cancellation because of mental illness. QBE also observed the Disability Discrimination Act 1992 (Cth) permitted discrimination to avoid unjustifiable hardship.

QBE did not produce evidence that the statistical data on which it relied existed when the policy terms were formulated. VCAT also found the information provided by QBE did not demonstrate it was reasonable for the insurer to exclude mental health illnesses. VCAT said, when determining whether a hardship that would be imposed is 'unjustifiable', it is necessary to account for all relevant circumstances. These circumstances include those set out in section 11(1) of the Disability Discrimination Act 1992 (Cth) - for example:
  • the nature of the benefit or detriment likely to accrue to, or to be suffered by, a person (including, for example, the benefit or detriment likely for the community), or
  • the financial circumstances, and the estimated amount of expenditure required.
VCAT found QBE provided insufficient evidence for VCAT to determine whether QBE would face an unjustifiable hardship from being unable to rely on the mental illness exclusion. Evidence that QBE could have provided includes calculations of the scope of premium increases required to cover claims or projected losses to the company.

Goods and services: credit providers

Section 48 of the Equal Opportunity Act allows credit providers to discriminate against people applying for credit on the basis of age. The section is consistent with the Age Discrimination Act 2004 (Cth).

The exception provides that:

(1) A credit provider may discriminate against an applicant for credit on the basis of age by refusing to provide credit, or in the terms on which credit is provided, if--
a) the criteria for refusal or the terms imposed--
(i) are based on actuarial or statistical data on which it is reasonable for the credit provider to rely; and

(ii) are reasonable having regard to that data and any other relevant factors; or

b) in a case where no such actuarial or statistical data is available and cannot reasonably be obtained, the criteria for refusal or the terms imposed are reasonable having regard to any other relevant factors.

Goods and services: supervision of children

Under section 49 of the Equal Opportunity Act the provider of goods and services to a child is allowed to require the child be accompanied or supervised by an adult if there is a reasonable risk that the child may cause a disruption or endanger themselves or another person. This exception is intended to protect the health and safety of children and the general public.

Disposal of land: disposal by will or gift

Under section 51 of the Equal Opportunity Act It is not unlawful for a person to discriminate, in the disposal of land by will or gift, against any person on the basis of any attribute.

Exceptions relating to the provision of accommodation and access to public premises

Accommodation unsuitable for children

Under section 58A of the Equal Opportunity Act a person may refuse to provide accommodation to a child or a person with a child if the premises are unsuitable or inappropriate for occupation by a child because of their design or location.

According to the Explanatory Memorandum of the Equal Opportunity Amendment Bill 2011 the exception does not allow a person to refuse to provide accommodation if the premises are considered unsuitable for other reasons, such as the amenity of other guests.

Shared accommodation

Under section 59 of the Equal Opportunity Act A person can discriminate in deciding who is to occupy residential accommodation if the provider of accommodation or a near relative resides in the premises, and the accommodation will accommodate no more than three people (excluding the provider or near relatives). 'Near relative' includes a parent or grandparent, child or grandchild, spouse or domestic partner.

Welfare measures of accommodation

Section 60 of the Equal Opportunity Act provides that hostels or similar institutions that are run wholly or mainly for the welfare of persons of a particular sex, age, race or religious belief may refuse accommodation to people who do not have the particular attribute.

The Explanatory Memorandum of the Equal Opportunity Bill 2010 provides the example of an aged-care facility, targeted at the Greek community, that refuses to accept non-Greek people. Such discrimination would fall under this exception.

In Georgina Martina Inc [2012] VCAT 1384 VCAT found the welfare measures exception applied to a refuge established for the welfare of women (and their children) fleeing domestic violence. As a result, it was lawful for the refuge, in providing accommodation, to discriminate against males over the age of 18 years.

Similarly, in Anglicare Victoria [2015] VCAT 79 VCAT was satisfied a refuge providing secure accommodation to women experiencing family violence and trauma caused by sexual assault was a welfare measure.

Accommodation for students

The exception in section 61 of the Equal Opportunity Act allows educational authorities that operate an educational institution (including schools, colleges, universities or other education or training institutions) wholly or mainly for students of a particular sex, race, religious belief, age or age group, or for students with a general or particular impairment (as allowed by the exception in section 39) to provide accommodation wholly or mainly for students with that particular attribute.

The Explanatory Memorandum of the Equal Opportunity Bill 2010 states the exception is not intended to allow discrimination in the allocation of accommodation to people who have been accepted into the accommodation by the educational authority.

Accommodation for commercial sexual services

Section 62 of the Equal Opportunity Act provides that a person may refuse to provide accommodation to another person if the other person intends to use the accommodation for, or in connection with, a lawful sexual activity on a commercial basis, such as a licensed brothel.

Access to or use of public premises not reasonable

The Equal Opportunity Act has a specific exception for discrimination in accessing public premises. Section 58(1) allows discrimination in relation to the access or use of public premises when the discrimination cannot reasonably be avoided or the discrimination is permitted by a disability standard under the Disability Discrimination Act 1992 (Cth) or by a determination under the Building Act 1993 (Vic). For determining whether the discrimination can be reasonably avoided, all relevant facts and circumstances must be considered, including:

Specifically, under section 58(3)(a) of the Equal Opportunity Act, discrimination is permitted when the premises or facilities comply with, or are exempt from compliance with, a disability standard under the Disability Discrimination Act. Under that Act, statutory disability standards can be made to deal with reasonable adjustments, unjustifiable hardship and exemptions from the standards. Discrimination is also permitted when a determination made under section 160B of the Building Act 1993 (Vic) exempts a person from having to comply with disability standards under the Disability Discrimination Act that relate to the building or land on which the relevant premises or facilities are situated.

Exceptions relating to clubs

Clubs for minority cultures

A club that operates principally to preserve a minority culture may exclude a person from membership if that person is not a member of the group for whom the club was established.

Clubs for political purposes

Section 66A of the Equal Opportunity Act provides an exception for clubs that were established principally for a political purpose. The exemption allows those clubs to exclude from membership a person on the basis of political belief or activity.

The section was inserted in 2011, immediately before the Equal Opportunity Act commenced. According to the Explanatory Memorandum of the Equal Opportunity Amendment Bill 2011 the exception was introduced to protect the operation of political clubs that now fall within the new definition of 'clubs'. Under the 1995 Act, the definition of 'club' did not capture a political club.

Club benefits for particular age groups

Section 67 of the Equal Opportunity Act permits clubs established for people of a particular age group to exclude people from membership who are outside that age group. The exclusion must be reasonable in the circumstances.

Single sex clubs

Section 68 of the Equal Opportunity Act permits clubs to exclude a person from membership on the basis of that person's sex, if membership of the club is available to only persons of the opposite sex.

Section 68(2) obliges a club relying on the exception to make its membership eligibility rules publicly available, without charge.

Separate access to club benefits for men and women

Under section 69 of the Equal Opportunity Act clubs are allowed to limit, on the basis of sex, a member's access to club benefits if it is not practicable for men and women to enjoy the same benefit together. In this case, clubs must provide separate access to the same or an equivalent benefit for men and women, or allow men and women a reasonably equivalent opportunity to enjoy the benefit.

Section 69(2) sets out five matters for determining whether the exception is valid, including:
  • the purposes for which the club was established
  • the membership of the club
  • the nature of the benefits provided
  • the opportunities for men and women to use and enjoy those benefits
  • any other relevant circumstances.

The Explanatory Memorandum of the Equal Opportunity Bill 2010 uses the following example of this exception:

This exception may apply to allow clubs to limit access to facilities to members of one sex at certain times if the facilities only have change rooms suitable for use by members of one sex at a time. However, if a club does restrict access in this way it would need to provide equivalent access to members of the opposite sex in order to attract the protection of the exception.

Exceptions relating to local government

Local government: political belief or activity

Section 74 of the Equal Opportunity Act provides an exception to the section 73 prohibition on councillors discriminating against fellow councillors and council committee members in the performance of their public functions.

The exception means a councillor of a municipal council may discriminate against another councillor or member of a council committee on the grounds of their political belief or activity. It allows councillors to form political alliances within municipal councils and to act on the basis of the political parties to which councillors belong.

Notes

1 : Enactment includes rules, regulations, by-laws, local laws, orders, Order in Council, proclamations or other instruments of legislative character: Equal Opportunity Act s 4; Interpretation of Legislation Act 1984 (Vic) s 38; Dulhunty v Guild Insurance Limited (Anti-Discrimination) [2012] VCAT 1651 [16]-[33].

2 : Compare to NC, AG, JC, SM, Matthews & Matthews as personal representatives of the Estate of Matthews v Queensland Corrective Services Commission [1997] QADT 22; (1998) EOC 92-940, where the Queensland Anti-Discrimination Tribunal found the respondent could not rely on the health and safety exception to exclude prisoners with HIV status in accommodation and activities, due to a paucity of evidence.

3 : Victoria, Parliamentary Debates, Legislative Assembly, 5 May 2011, 1363-1367 (Robert Clark, Attorney-General).

4 : The case was appealed to the Supreme Court of Appeal: Christian Youth Camps Limited & Ors v Cobaw Community Health Services Limited & Ors [2014] VSCA 75; (2014) 50 VR 256. The High Court refused special leave to appeal: Christian Youth Camps Ltd v Cobaw Community Health Services Ltd [2014] HCATrans 289.

5 : In Trkulja v Dobrijevic [2013] VCAT 925 [53]-[54] VCAT followed this reasoning, noting the sensitivities that must be considered are not the subjective sensitivities of one person, but the sensitivities common to adherents of the religion.

6 : Victoria, Exemption Application No A48/2012, General Gazette Number G38, 20 September 2012, 2084.

7 : [2017] VCAT 1507.


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