Section 11 - What did the consultation hear about special measures? - Addressing sexual orientation and sex and/or gender identity discrimination: Consultation Report (2011)
Addressing sexual orientation
and sex and/or
gender identity
discrimination
Consultation Report
2011
Section 11 - What did the
consultation hear about special measures?
All state and territory anti-discrimination laws (apart from the New South
Wales Act) contain a distinctive type of exemption that allows positive measures
designed to benefit specific groups if they have the objective of furthering
equality.[241] For example, this
would allow the provision of a benefit or service solely to members of LGBTI
communities, if the purpose was to promote equality.
Only a small number of comments to the consultation expressed a view
regarding special measures. However, those that did express a view generally
supported such measures. For example, the Law Council of Australia noted that
‘circumstances exist in which special measures provisions are appropriate
to achieve substantive equality within the
community’.[242] They
suggested that examples of special measures could include the provision of
LGBTI-specific services for support groups, medical services, accommodation
providers and legal services, as well as employment policies which specifically
support LGBTI employees.
The {Also} Foundation suggested some examples of where special measures might
be of benefit:
It is not possible to individually list each and every kind of special
measure that might be captured by such an exception in federal
anti-discrimination legislation. However, some examples could include providing
a housing service specifically for gay men; and restricting an employment
opportunity to transgender candidates if the role to be performed involved
delivering a service designed to support transgender
youth.[243]
Other participants also highlighted the need for a special measure exemption
to be carefully worded to protect the LGBTI community and to ensure that it is
not abused.[244] For example, the
NSW Gay & Lesbian Rights Lobby commented:
A fine balance needs to be reached between outlawing all discrimination on
the basis of sexuality and sex and/or gender identity, ensuring that the act is
not used for spurious claims, and that the social and cultural identity of a
disadvantaged community group is preserved. The preservation of the
group’s identity is an important consideration in the framing of any
federal anti-discrimination legislation on the basis of sexuality and sex and/or
gender identity.
... Any ‘special measures’ included in the legislation should be
considered in light of international law and Australia’s human rights
obligations, including the need to consult with affected
communities.[245]
[241] Equal Opportunity Act
1995 (Vic), ss 19, 61, 82; Anti-Discrimination Act 1991 (Qld), ss
104, 105; Equal Opportunity Act 1984 (SA), ss 47, 85ZB(2), 85ZK; Equal
Opportunity Act 1984 (WA), ss 31, 35ZD; Discrimination Act 1991 (ACT), s 27; Anti-Discrimination Act 1992 (NT), s 57; Anti-Discrimination Act 1998 (Tas), ss 25, 26. As the grounds in Anti-Discrimination Act 1977 (NSW) – homosexuality and transgender
– provide protection only to members of the LGBTI communities, and not to,
for example heterosexuals, a special measures exemption is not needed for the
purpose of moving towards equality.
[242] Law Council of
Australia, Comment 132, p 27. See also Victorian Bar, Comment 148, p 7.
[243] {Also} Foundation,
Comment 84, p 7.
[244] NSW Gay
& Lesbian Rights Lobby, Comment 94; {Also} Foundation, Comment 84; Freedom!
Gender Identity Association, Comment 90; Name withheld, Comment
9.
[245] NSW Gay & Lesbian
Rights Lobby, Comment 94, pp
16-17.
