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Temporary exemption under the Age Discrimination Act
HREOC GUIDELINES

 

Updated 24 April 2008

Contents

  1. The purpose of these guidelines
  2. Summary
  3. What criteria does HREOC apply in deciding whether to grant an exemption?
  4. How does HREOC process exemption applications?
  5. How do I apply for an exemption?
  6. How do I seek review of HREOC’s decision?

1. The purpose of these guidelines

Section 44 of the Age Discrimination Act 2004 (Cth) (the ADA) gives the Human Rights and Equal Opportunity Commission (HREOC) the power to grant temporary exemptions from certain provisions of the ADA.

Temporary exemptions allow time, where necessary, to make changes to comply with the ADA. Actions or circumstances covered by the exemption are not unlawful under the ADA while the exemption is in force.

This means that if a temporary exemption is granted the activities covered by the temporary exemption can not be the subject of a successful complaint under the ADA.

The ADA does not say how HREOC should exercise the power to grant exemptions. Because HREOC’s power to grant exemptions may have a significant impact on legal rights and obligations under the ADA, HREOC has developed these guidelines. The Guidelines explain:

2. Summary

In deciding whether to grant an exemption, HREOC will consider:

In granting an exemption, HREOC can:

HREOC’s decision-making process will depend on the circumstances. HREOC believes that persons who may be affected by the outcome of an exemption application should, where practicable, be given an opportunity to comment on the application.

3. What criteria does HREOC apply in deciding whether to grant an exemption?

In deciding whether to grant an exemption, HREOC will consider all of the relevant circumstances and apply the following criteria:


1. Is an exemption necessary?

For an exemption to be necessary, there must be at least an arguable case that the activities the subject of the application constitute discrimination contrary to the ADA.
HREOC will consider matters including:
  • whether the circumstances are within the jurisdiction of the ADA (see ss 9 and 10);
  • whether any of the permanent exemptions to the ADA apply ( see ss 25, 33-43); and
  • whether the circumstances can be brought within the ‘positive discrimination’ provision of the ADA (see s 33 of the ADA).

2. Is granting an exemption consistent with the objects of the ADA?

HREOC must consider the objects of the ADA, set out in s 3. In broad terms, these objects are:
  • to eliminate, as far as possible, discrimination against persons on the ground of age in a range of areas, including, work, education, access to premises, the provision of goods, services and facilities and accommodation;
  • to ensure, as far as practicable, that everyone has the same rights to equality before the law, regardless of age;
  • to allow appropriate benefits and other assistance to be given to people of a certain age, based on their particular circumstances; and
  • to promote recognition and acceptance within the community of the principle that people of all ages have the same fundamental rights.
If an exemption is sought that would allow conduct that is inconsistent with, or undermines, the objects of the ADA, this will be a significant reason not to grant an exemption.
In considering this issue, HREOC will have regard to:
  • the reasonableness of the exemption sought – HREOC will weigh up the nature and extent of the discriminatory effect against the reasons advanced in favour of the exemption;
  • whether the circumstances, while not falling precisely within any of the permanent exemptions to the ADA, bear a close resemblance to any of those exemptions so as to be within the spirit or broad scheme of those exemptions;
  • whether the exemption could be granted subject to terms and conditions which further the objects of the ADA (see below).

Where an exemption is sought for reasons wholly unrelated to the objects of the ADA (such as to gain commercial advantage), this may be a factor weighing against the grant of an exemption.

 

3. Is it appropriate to grant an exemption subject to terms and conditions?

HREOC will consider whether it is appropriate to make an exemption subject to terms and conditions or to limit its application to particular circumstances or activities.
In particular, HREOC will consider whether an exemption could be granted subject to terms and conditions which:
  • require actions to be taken by the Applicant during the term of the exemption which will remove the discriminatory practice or circumstance;
  • require actions to be taken by the Applicant during the term of the exemption which, while not remedying the discriminatory practice which is the subject of the exemption, will further the objects of the ADA.

HREOC may also decide to grant the exemption for only a limited period (up to a maximum of five years).

 

4. What are the views of persons or organisations who are interested in or who may be affected by the outcome of an application?

HREOC will consider submissions from interested parties which comment on the application.

4. How does HREOC process exemptions?

HREOC can only grant an exemption when it has received an application seeking an exemption.

HREOC will seek to give interested parties an opportunity to participate in decisions regarding applications for exemption.

The process for deciding applications for exemptions will depend on the circumstances.

HREOC may take any of the following actions in deciding whether to grant the exemption:

  1. Publish the Application on HREOC’s website with a call for public comments.
  2. Seek further information from the Applicant.
  3. Invite persons who may be affected by HREOC’s decision to make written submissions commenting on the application.
  4. Hold discussions with the Applicant and any other interested parties to negotiate the terms and conditions on which an exemption is granted.
  5. Make proposed decisions on Applications available to interested parties for comment before HREOC makes a final decision.

State and Territory Anti-Discrimination Boards and Equal Opportunity Commissions will also be notified that a temporary exemption application has been made and invited to comment on the Application.

In reaching its decision, HREOC will seek the recommendation of the Commissioner Responsible for Age Discrimination.

The ADA requires publication in the Commonwealth Government Gazette, within one month after a decision on an exemption application, a notice:

5. How do I apply for an exemption?

(a) Who may apply for an exemption?

An application for an exemption may be made:

(b) What activities can be the subject of an exemption?

Temporary exemptions under the ADA may be granted from any of the provisions of the ADA which make discrimination unlawful in relation to:

(c) What activities can not be the subject of an exemption?

HREOC can not grant exemptions from:

(d) How should applications for exemption be made?

Applications should be submitted electronically to legal@humanrights.gov.au

(e) What information should the application include?

Applicants should read these guidelines carefully before preparing an application. Applications should address HREOC’s exemption criteria.

In particular, applications should include the following information:

1. Who is seeking the exemption?

The application should state who is seeking the exemption: i.e. the person, people or class of people.

If the application is made on behalf of an organisation, the application should include information about the nature of the Applicant. E.g. is the organisation a trading corporation or a voluntary organisation?

2. 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 five years.

3. What 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 ADA the exemption relates to (see section (b) above)

4. 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.

5. Is the exemption necessary?

The application should state why the exemption is necessary to prevent a breach of the ADA. In particular, Applicants should consider if:

  • The proposed activity is covered by a permanent exemption (ss 25, 33-43 of the ADA) and therefore lawful.
  • The proposed activity falls within the positive discrimination provision and therefore lawful. Section 33 of the ADA makes it legal to discriminate against a person on the basis of their age, if the discrimination:
    • provides a real benefit to a person of a particular age;
    • aims to meet a need that affects people in a particular age group; or
    • aims to reduce a disadvantage experienced by a particular age group,

and the discrimination is consistent with the purposes of the ADA.

 

6. Why should the exemption be granted?

The application should set out the reasons why the exemption is required. It should also include any evidence that supports these reasons.

The application should, where possible, explain:
  • How the proposed exemption fits within the objects and scheme of the ADA;
  • Why immediate compliance with the ADA is not possible or should not be required in this case;
  • Any things done or planned by the Applicant which seek to achieve the objects of the ADA;
  • Any terms or conditions which further the objects of the ADA and which the Applicant is prepared to meet as a condition of receiving 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;
  • The financial or other hardship which will be incurred if the exemption is not granted;
  • Measures proposed to minimise or reduce any hardship which may occur to people affected by the proposed exemption.

HREOC may seek additional information about any other matter HREOC considers relevant to considering the exemption application.

 

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

You should tell HREOC if there are any factors that may affect the handling of your application. These may include:

  • Reasons why the application should be processed urgently.
  • There are reasons why material provided in connection with the application should not be made publicly available (e.g. protection of personal information or commercial sensitivity).
  • Whether you have, or intend to seek an exemption under any law of a State or Territory dealing with age discrimination.
  • Whether there is a complaint before HREOC under the ADA, or before a State or Territory authority dealing with age discrimination, in relation to the subject of the exemption application.

6. Can I seek review of HREOC’s decision?

Any person whose interests are affected by a decision of HREOC regarding an application for exemption may apply to the Administrative Appeals Tribunal for a review of the decision.