Skip to main content

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


Consultation Report


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


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


[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

[245] NSW Gay & Lesbian

Rights Lobby, Comment 94, pp