Getting an Exemption

The State Administrative Tribunal can grant an “exemption” from the Act. An Order allows applicants to ‘discriminate’ without acting unlawfully, because they are fulfilling the Act’s purpose: to promote equality of opportunity in Western Australia, eliminate discrimination and promote the recognition and acceptance of the equality of all persons.

Why can the Tribunal grant exemptions?

The Act recognises that ‘equal opportunity’ is not necessarily achieved by treating everyone the same way. ‘Standard’ rules can have a discriminatory effect if some groups can’t comply with them – for example, the old rule that all police officers had to be nearly six feet tall excluded most women and members of some racial groups. The Act aims to achieve substantive equality. This means taking into account the historical effects of past discrimination that leaves some people off the ‘level playing field’ because they belong to a disadvantaged group defined by a discrimination ground.

The Act also provides, for most grounds, a special provision for ‘measures intended to achieve equality.’ This states that it is not unlawful to treat someone less favourably if the act is intended to ensure that such persons enjoy equality of opportunity, or to give them access to facilities, services or opportunities to meet their special needs in specified areas of public life such as employment, education, training or welfare.

To gain an exemption an application must be made to the State Administrative Tribunal. The Tribunal holds a public hearing at which interested parties, both supporters and objectors, can be heard. The Commissioner for Equal Opportunity is automatically a party to the proceedings. The Tribunal can grant an exemption for a maximum period of five years, and can impose conditions.

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What you should be prepared to demonstrate to the Tribunal

The leading case is Stevens & Ors v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782.

The factors set out below come from a range of exemption decisions across Australia and are intended only as a guide. People who wish to apply for an exemption should get full legal advice from an expert.

If you are an applicant for an exemption you must be prepared to demonstrate to the Tribunal that:

It would not normally be enough to demonstrate that you had commercial reasons for targeting a particular market defined by one of the grounds, such as age (under 25, over 55), or marital status (such as single people with no children, or heterosexual or homosexual couples). Though commercial considerations are certainly no bar, the objects of the Act must be promoted by the grant of the exemption.

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2. It is necessary. What you wish to do must be at least possibly discriminatory. If it would clearly not be discriminatory or if a statutory exception clearly applies, the exemption will not be granted. If, however, you wish to somewhat extend or broaden the scope of expressed exceptions, the Tribunal may grant the exemption. For example, a travel agency targeting retired lesbian single women, or a taxi service for single women travellers might each be entitled to use the ‘special measures’ exception in the Act, if someone challenged them, but prefer to seek an exemption during the business set-up stages to enable the enterprise to establish itself without fear of further litigation.

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3. The conduct you wish to exempt is not clearly prohibited by some other law. For example, the Tribunal would not be interested in exempting from the operation of the Act the management of a club that planned to benefit people of a particular cultural or religious group but admitted to allowing unaccompanied children and unsupervised infants in breach of Liquor Licensing or child protection laws.

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4. That it targets a discriminated-against group. You should be prepared to prove that there is a group of people for whose benefit the exemption would work, who are intended to benefit from what you wish to do and who are peculiarly and differentially disadvantaged because they belong to a group defined by a discrimination ground.

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5. What you wish to do is intended to peculiarly or uniquely apply to a disadvantage experienced by members of that group. For instance in Tietz (10th November 2000) the WA Tribunal exempted self-defence courses exclusively for women from the operation of the Act because of the ‘common knowledge’ of the need for women to protect themselves from violence. It is necessary to prove that the group you mean to benefit does suffer from a disadvantage. An ‘affirmative action’ program or temporary positive discrimination must be objectively based on evidence of past discrimination experienced as a disadvantage now. In 1998 the Victorian Tribunal granted an exemption to a gay hotel and bar for men-only space, partly having regard to the fact that ‘gay males form only a small proportion of the general community and …. their lives were made socially difficult to live to the full, to the point where it was impossible for them to form groups, to bond, to give each other mutual support, and of course to engage in the sexual relations that lay at the very centre of their desires, other than in the strictest of privacy. Such privacy may not have been available to many, and social ostracism or worse would have been commonplace for those that expressed their sexuality openly.’ Morodara Pty Ltd and Fourth Elf Pty Ltd (1998) EOC 92-920.

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6. What you propose is reasonably likely to have the beneficial effect you plan. For example, the City of Brunswick failed in its application to exclude males from the public pool for a trial period of four months to decide whether there existed disadvantaged women in its community who would benefit from ‘women only’ time on a permanent basis, because it could not demonstrate how it would help a group of women who had not been identified as having problems in using the pool. City of Brunswick: re application for exemption (1992) EOC 92-450. This case is discussed further below.

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7. Other persons ‘discriminated against’ by the exemption will not suffer by being excluded In the Tietz, case for example, the Tribunal was satisfied that there were plenty of self-defence courses available for men, or men and women, so that men who were excluded from the service to be covered by the exemption would not be disadvantaged by the operation of the exempt business, in having ready access to the service proposed at other sites or in other ways.

If that is not the case, then the Tribunal must be satisfied, overall, that

8. It is reasonable and appropriate to grant the exemption. Given that the exemption permits ‘discrimination’ what you wish to achieve from the exemption must be shown to be in the public interest. The Brunswick exemption application failed the ‘reasonable and appropriate’ test because the Council failed to bring any evidence to show how many women used its pool in comparison to men, currently or over a period of time; statistical data it proposed to collect from pool users in ‘women only’ sessions; how the data collected would indicate to the Council if there were disadvantaged groups within the women residents of Brunswick with respect to the use of services at the pool complex, and what their disadvantage was; and that there were no reasonable ways of finding this information out other than by a trial closure of the pool to men. Nor had they conducted surveys, training for users or staff at the pool or any other steps to address problems women had experienced through rowdy and threatening behaviour at the Brunswick Pool.

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Exemption applications that are well prepared, based on factual evidence, and planned – as any business is planned – are much more likely to succeed than well-intentioned but superficially designed projects.

An application for an exemption from the Act can be completed online at the State Administrative Tribunal or submitted to:

Executive Officer
State Administrative Tribunal
Level 4, 12 St George’s Terrace
PERTH WA 6000

or

GPO Box V1991 PERTH WA 6845.

Information about exemptions can be obtained from the Registrar of the State Administrative Tribunal on telephone (08) 9219 3111 or 1300 306 017 (STD callers) or at www.sat.justice.wa.gov.au.

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