Discrimination in the Law

Under the Equal Opportunity Act 1995 (“EOA”) exemptions and exceptions can apply in certain circumstances. Where they apply, discrimination is not unlawful under the Act; that is there is an excuse for the discrimination. Such exemptions and exceptions can be positive and beneficial in assisting the promotion and protection of equal opportunity.

Exceptions allow a person to discriminate in limited circumstances. If a complaint is made about the discrimination it is the responsibility of the person who is relying on the exception to raise and prove an exception as a defence to a complaint.

Exemptions can be granted by the Tribunal if it believes that doing so would further the goal of promoting equal opportunity. This means that discrimination will be exempt from the provisions of the EOA. Temporary exemptions apply for the period of time set by the Tribunal, which cannot be longer than three years. During the exemption period the discriminatory behaviour will be lawful.

There is a general exemption in relation to special services, benefits or facilities that are designed to meet the special needs of people with a particular attribute or to prevent or reduce a disadvantage suffered by those people in their education, accommodation, training or welfare. For example, special measures may exist for women, people with a disability or people within a particular age or religious group.

The case of Stevens and Ors v Fernwood Fitness Centres[75] involved a women only gym. The Tribunal said it would look at whether there was some public interest to justify the granting of the exemption; whether the exemption was within the spirit although not the letter of some of the express exception provisions, and whether it would promote an objective of the Act. The Tribunal granted the exemption to allow a women only gym.

Discrimination based on statutory authority

All discrimination laws recognise the general principle that there is some legislation which may conflict with the content of anti-discrimination laws and principles.[76] In many instances the conflicts are based on sound policy and are in accordance with community values and expectations. Examples include where laws allow (i) specialist religious or other educational institutions, (ii) youth wages to be paid, (iii) an entitlement to an age pension, or (iv) insurance policies that discriminate on the basis of age or health status.

However, in other circumstances laws may be discriminatory or may lead to discrimination and the basis of the law is either out-of-date or is unintended.

In Victoria, discrimination which is necessary to comply with or is authorised by a legislative provision is not unlawful under the EOA. Section 69 provides—

Things done with statutory authority

(1) A person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of–

(a) an Act, other than this Act;

(b) an enactment, other than an enactment under this Act.

(2) For the purposes of sub-section (1), it is not necessary that the provision refer to discrimination, as long as it authorises or necessitates the relevant conduct that would otherwise constitute discrimination.

An enactment referred to in the section includes a rule, regulation, by-law, local law, order, Order in Council proclamation or other instrument of a legislative character.[77] In order for the provision to come into operation it is not necessary that the provision in another Act or enactment refer to discrimination. It must however authorise or necessitate the relevant conduct that would otherwise constitute discrimination.

In the decision of Public Transport Commission v Waters,[78] the High Court considered a similar provision in the 1984 Equal Opportunity Act.[79] Three of the judges considered that the section should be construed narrowly so as to refer only to something which is done in order to comply with a specific obligation directly imposed by an actual provision of another Act.

In Heinz Company Australia Ltd v Turner[80] the Supreme Court of Victoria considered the extent of the requirement, ‘necessary to comply’. The Court decided that it was lawful for an employer to refuse an employee to work overtime because it would exacerbate a work related injury. The refusal discriminated against the employee on the basis of his impairment but was necessary in order to comply with the Occupational Health and Safety Act.

A managerial policy or directive made under an Act does not come within the exception as it has not been gazetted or introduced into parliament.[81]

Discrimination in Legislation

Set out below are several examples of Victorian Acts which contain provisions that if complied with, could result in discrimination:

• Age

The Victorian Guardianship and Administrative Act 1986 provides that any person may apply to the Tribunal for an order appointing a guardian for a person with a disability who has attained the age of 18 years.[82] This provision discriminates on the basis of disability and age. However, as the purpose of the legislation is for the appointment of guardians (and administrators) for persons who because of a disability are in need of a guardian and/or administrator, the discriminatory provision is beneficial and can be supported on policy grounds.

The issue however, is whether the age of 18 is the appropriate minimum age at which a person can have a guardian and/or administrator. For example, in the New South Wales Act, an application for a guardianship order may be made for a person who is 16 years and older. In light of the NSW legislation, it is questionable whether 18 years as the minimum age at which one can have a guardian and/or administrator appointed in Victoria, is based on sound policy and representative of community values.

• Impairment

Occupational health and safety legislation may contain provisions that could give rise to discrimination. For example, in Hawes v NSW Ambulance Service,[83] the New South Wales Tribunal held that the dismissal of an ambulance officer subject to epileptic seizures was not unlawful discrimination on the ground of disability, as the employer was required to comply with occupational health and safety law. It is argued that such discrimination is justified and based on sound policy given that the continued employment of this officer could have placed him in danger as well as his co-workers and the general community.

• Marital Status

The County Court Act 1958 creates an entitlement to a pension for the widows of judges.[84] The entitlement persists until remarriage, at which time it will terminate. As it is, the provision does not contemplate the provision of a pension to the widowers (male partners) of female County Court Judges. Additionally, no pension is payable to the spouse of a former judge where the marriage occurred after the judge’s resignation or retirement. The provision therefore specifically discriminates against a person on the basis of sex and marital status and sexual orientation for same sex partners.

• Race

Under the Victorian Coroners Act 1985, a person who is a senior next of kin can object to the carrying out of an autopsy.[85] The lack of inclusion of other persons who may have a specific interest in whether or not an autopsy is performed may lead to discrimination. In addition, an objection to an autopsy on the basis of custom or cultural belief cannot, for example, be raised by an elder.

In the case of Green v Johnstone[86], the Supreme Court considered whether an order should be that no autopsy should be performed on the grounds that Aboriginal cultural and religious law prohibited the mutilation of a body. The Court said that great weight should be given to the cultural and spiritual laws and practices of groups forming our society and great care should be taken to ensure that their laws and practices, if otherwise lawful, are not disregarded or abused. The Court decided that if an autopsy was contrary to Aboriginal culture and law, then no autopsy should be performed.

• Sex

Under the Control of Weapons Act 1990, it is an offence to possess or carry a dangerous article without lawful excuse.[87] Considering provisions similar to section 7 of the Victorian Act, the High Court in Taikato v The Queen[88] considered the possession of an irritant spray for self-defence. The majority of the Court dismissed the appeal, and found that there was no lawful purpose or reasonable excuse for Ms Taikato to keep the canister for the purpose of self-defence.

One judge considered that Australian courts should look at relevant and contemporary Australian conditions which he stated, include the danger which is faced by women in certain circumstances and at certain times in Australian cities. They also include the dangers faced by other vulnerable groups, such as the old, the young, ethnic minorities and homosexuals. On this view, the decision by the High Court that no legal right of self-defence arises until there is a reasonable apprehension of attack by the person assaulted, leads in effect to discrimination against women.

Other exceptions and exemptions

The EOA provides a number of exceptions and exemptions whereby certain discrimination is not prohibited and therefore not unlawful. The exceptions and exemptions which are within the EOA itself rather than by reference to other Acts include—

Section 22 – Special services or facilities

Pursuant to section 22 of the Act, an employer may discriminate against another person as a job applicant or employee on the basis of impairment if, in order to perform the “genuine and reasonable requirements of the employment”—

• the person with a disability requires special services or facilities;

• and it is not reasonable in the circumstances for those special services or facilities to be provided;

• or the person could not adequately perform the genuine and reasonable requirements of the employment even after the provision of special services or facilities.

In deciding whether or not a person can perform the requirements of the employment, all relevant factors and circumstances must be considered, including the person’s training, qualifications, experience and current performance in the position where applicable.

Section 23 – Reasonable terms of employment

An employer may set reasonable terms of employment, which correspond to the genuine and reasonable requirements of the employment.

An employer can also make reasonable variations to those terms, to take into account–

• any special limitations that a person’s impairment or physical features imposes on his or her capacity to undertake the reasonable and genuine requirements of the employment;

• or any special facilities that are required to enable the person to undertake or facilitate the employment.

Section 26 – Compulsory Retirement of Judicial officers

Although the Act abolished compulsory retirement, an exception is provided to this abolition with respect to the retirement, or failure to appoint (on the basis of age)—

• a Supreme Court or County Court judge

• a Magistrate

• a bail justice.

Section 27A – Early retirement schemes

Although compulsory retirement is unlawful, in deciding the terms on which to offer an employee an incentive to resign or retire, an employer may take into account the age of the employee and the eligibility of the employee to receive retirement benefits from a superannuation fund.

Section 66 – Competitive sporting activities

A person may exclude people of one sex or with a gender identity from participating in a competitive sporting activity in which the strength, stamina or physique of competitors is relevant. This does not apply to sporting activities for children under the age of 12 years. A person may restrict participation in a competitive sporting activity to people—

• who can effectively compete;

• of a specified age or age group;

• with a general or particular impairment.

Section 71 – Pensions

Discriminatory provisions in relation to pensions are not unlawful. It can be argued that although this section applies to discrimination against the immediate recipient of the pension, the exception does not extend to discrimination against other persons who may be entitled to receive the benefit of the pension by virtue of their relationship with the recipient.

Section 72 & 73 – Superannuation

There are four specific exemptions in relation to superannuation and age discrimination. Discrimination which is exempted from the Act is that which—

• occurs in the application of standards under the Superannuation Entities (Taxation) Act 1987 or the Superannuation Industry (Supervision) Act 1993;

• is required to comply with, to obtain benefits or avoid penalties under any other Commonwealth Act;

• is based on actuarial or statistical data or any other data on which it is reasonable to rely and is reasonable having regard to any relevant factors;

• if none of the above apply, the discrimination is reasonable having regard to any relevant factors.

This exception is designed to allow discrimination on the basis of age, where a decision is based on sound actuarial information. For example, a person’s age and expected number of years in employment and in retirement have a bearing on the person’s income, level of contribution and financial needs.

Section 75 & 77 – Religious bodies and people

Religious bodies are permitted to discriminate in appointing religious ministers and people to perform other religious functions, and more generally where it is necessary to avoid injury to the religious sensitivities of people of the religion.

Section 79 – Legal incapacity and age of majority

Section 79 states that a person may discriminate against another person who is subject to a legal incapacity that is relevant to the transaction or activity in which they are involved. This may be relevant if a person with a disability lacks legal capacity in relation to their financial and legal affairs.

Further, the Act is not intended to affect the law in relation to “the age of majority”. A person may discriminate against another person who is subject to a legal incapacity that is based on their age. It is recognised that children do not have many of the rights which adults enjoy.

Section 80 – Protection of health, safety and property

A person may discriminate on the basis of a person’s disability or physical features if the discrimination is “reasonably necessary” to protect—

• the health or safety of any person (including the person discriminated against);

• the general public;

• any private or public property.

Further, a person may discriminate on the basis of pregnancy if the discrimination is reasonably necessary to protect the health or safety of any person (including the person discriminated against).

Section 81 – Age benefits and concessions

A person may provide benefits, including concessions, to another person based on age. For example, a cinema may provide discounts to patrons or a shop may provide “pensioner discounts”.

Section 83 – Exemptions by the Tribunal

The Victorian Civil and Administrative Tribunal can grant certain exemptions from the provisions of the Act. The exemption can be granted for a specified period up to 3 years and may be renewed or revoked on application to the Tribunal.

The granting of the exemption is at the Tribunal’s discretion. Generally, it will take into account the following factors in assessing whether an exemption is appropriate—

• that an exemption will not be unnecessary;

• that an exemption will not be granted where this will be futile;

• how the exemption may promote the objectives of the Act;

• whether there is an overriding public interest involved;

• all the relevant circumstances of the particular case.[91]

lkjlkj

Footnotes

[75]	(1996) EOC 92-782.
[76]	Ronalds, C., Discrimination Law and Practice, Federation Press, Sydney 1998, p. 146.
[77]	CCH Australian & New Zealand Equal Opportunity Law & Practice 74-940.
[78]	Waters v Public Transport Corporation (1991) 173 CLR 349.
[79]	Equal Opportunity Act 1984 (Vic), s39(e).
[80]	(1999) EOC 92-964.
[81]	X v Western Australia (1997) EOC 92-878.
[82]	Equal Opportunity Act 1995, s19.
[83]	(1994) EOC 92-586.
[84]	Equal Opportunity Act 1995, s14.
[85]	Equal Opportunity Act 1995, s29.
[86]	[1995] 2 VR 176.
[87]	Equal Opportunity Act 1995, s7.
[88]	(1996) 139 ALR 386.
[89]	(1992) EOC 92-402.
[90]	(1991) EOC 92-364.
[91]	In the Matter Of An Application For Exemption By Australian Olympic Committee Inc., Anti- Discrimination Tribunal of Victoria, 12 February 1998, p.3 citing Re Fernwood Fitness Centre (1996) EOC 92-782; Re Balmforth, Anti-Discrimination Tribunal of Victoria, 4 November 1996.
[92]	Re Balmforth, Anti-Discrimination Tribunal of Victoria, 4 November 1996.