Research Paper LAWS5011

Nurtasya Afalon (45217742) – Research Paper LAWS5011
The Australian federal anti-discrimination law has existed since 1975. 1 Every 8-10 years
there are new legislations added without the consideration of how effective the current
legislations are. 2 The purposes of anti-discrimination law are to reduce discrimination as
individuals with certain attributes may be exposed to, to ensure there is equality amongst all
in the law, to guarantee and recognise that all individuals in a community fundamentally
have the same rights and ultimately, to counteract discrimination and encourage equality. 3
However, there are exemptions for certain individuals and/or businesses which exempt
them from the anti-discrimination law. This paper will look into the anti-discrimination laws
and the exemptions of each part. Furthermore, this paper will examine whether having
permanent exemptions should remain apart of the federal anti discrimination laws or if
there should be a different approach.
Australian Anti-Discrimination Laws

There are multiple sections to the anti-discrimination act which cover all forms and basis of
discrimination. In 1975, the Federal Parliament implemented the laws for race
discrimination following that was the sex discrimination act in 19884. 4 In 1992, laws for
discrimination against individuals who have a disability was introduced. The laws for
discrimination against individuals based on their sexual orientation and gender identity was
introduced in 2004 and finally, discrimination based off intersex status laws was introduced
in 2013. 5 There were other grounds of discrimination introduced in 1986 which covered
employment discrimination. 6 In each state and territory of Australia there are different
protections, definitions and processes for handling breaches of the laws. While these laws
apply to everyone, there are also permanent exemptions in each act which allow for a
breach in the anti-discrimination act without consequence.
Permanent Exemptions
A permanent exemption to the Anti- Discrimination ACT 1977 may be needed when an
individual wish to favour a particular group of people based off race, age or gender where it
1
Free & Equal: Priorities For Federal Discrimination Law Reform (Australian Human Rights
Commission, 2019).
2
Commission, 2019).
3
Commission, 2019).
4
Commission, 2019).
5
Commission, 2019).
6
Commission, 2019).
would otherwise be prohibited under the Act. 7 There are two different ways to apply for
exemption. One way is to apply through the President of the Anti- Discrimination NSW
under section 126 of the Act. 8 Through this avenue, the President is able to grant an
exemption to allow for discrimination under any basis and in any area by the Act. 9 Another
way is to apply to through the Minister who is currently Attorney General under section
126A of the Act and apply for a certificate which allows for a special need program or
activity to function in a discriminatory way. 10 This is the only certificate that the Minister
can grant. The exemptions in section 126 tend to relate to employment and recruitment,
such as targeted jobs or recruitment programs targeted to a particular group covered by the
Act. 11 Since the 1st of January 2009, the President has been approving the exemptions
under section 126, he or she has to make a decision on the exemption within 60 days after
the application has been lodged. 12 When the President is deciding whether to grant an
exemption there are multiple factors that the President must consider. 13 Once the grant has
been given it can only be valid for a maximum of 10 years, but it can be renewed. 14
Contrastingly, section 126A exemptions are for special needs programs, activities or facilities
7
"Exemptions", Antidiscrimination.Justice.Nsw.Gov.Au (Webpage, 2020)
<https://www.antidiscrimination.justice.nsw.gov.au/service-providers/exemptions#Whendo
%C2%A0Ineedanexemption?>.
8
9
10
11
12
13
14
which support access for groups of people who are victim to unlawful discrimination. 15
These groups are listed under Parts 3-4C of the Act as people protected on the grounds of
their; sex, disability, homosexuality, transgender status, carer’s responsibilities. 16 The
exemptions under section 126A are reviewed by the NSW Attorney General. He or she
approves a section 126A exemption where he or she can see that the main purpose of the
special needs program or activity is to encourage equal or improved access for individuals in
the groups stated above. 17 In the section 126A exemption there is no maximum time limit
outlined in the ADA, they may be approved for a specific period of time or indefinitely. 18
Exemptions have more of a chance of being granted where it is seen that one is still applying
the principals and laws of anti-discrimination and are encouraging equal opportunity
amongst all people. 19 While exemptions may be effective the Commission believes that all
permanent exemptions should be well-thought-out through the overarching purpose of
discrimination laws in order to encourage equality and fair treatment. 20
Should permanent exemptions/ exceptions remain part of federal anti-discrimination laws

or should there be a different approach with a general justification clause requiring a case
by case determination?
The permanent exemptions/ exceptions have been integrated into the Anti-Discrimination
Act 1977 and is apart of the act since it was introduced. However, the integration of the
exemptions into the laws have been questioned. It can be said that there has not been an
evaluation of the level of necessity or how appropriate the current permanent exemptions
are and their scope. 21 The Commission believes that all permanent exemptions should only
be permanent in the event that it is extremely necessary and will allow for a low level of
15
16
17
18
19
20
Commission, 2019).
disruption on individuals’ rights. 22 The Commission also believes that all permanent
exemptions should be reviewed frequently to guarantee that they reflect the standards of
the community. 23 There are certain exemptions which have been under the Act for 40
years. 24 Over this period of time there has been no review of the exemptions which
demonstrates that it may not be of relevance anymore. It may be a more effective approach
if exemptions were looked at with a justification clause requiring a case by case
determination. This would be more effective as this would provide flexibility in the future
which ensures that the definition of unlawful discrimination is able to adjust to ensure that
legitimate actions do not comprise of discrimination. 25 Looking into each case would be a
more effective approach to exemptions as each case has different requirements and while
the exemptions only cover two different categories there are more situations which need to
be covered and be exempt from the act. For example, private religious schools are
permitted to discriminate against certain individuals of being hired into school. 26 However, it
can be argued that this exemption is unnecessary as there is little evidence to show that
private school utilise this privilege as most apply for jobs have the choice of where they
would like to seek employment. Another argument for changing the approach for
exemptions is the fact the exemptions breach the rights of women under the CEDAW and
does not eliminate discrimination against women. 27 This is evident as there are two
subsections in the NSW Anti-Discrimination Act 1977 which allows employers to dismiss
pregnant women when they applied for a job. 28 A woman who had recently applied for a
communications strategy job, went through all the recruitment processes and was hired.
After being hired, she had let the chief executive of the company know that she was
pregnant and needed maternity leave. The chief executive then offered to put her onto a
temporary four-month contract instead of full time work and after a few days of work she
was dismissed. However, her dismissal was based on the fact that she lived 45 minutes
21
Commission, 2019).
22
Commission, 2019).
23
Commission, 2019).
24
John Quessy, "IEU calls for end to anti- discrimination exemptions", The Newspaper of the
NSW Independent Education Union and the NSW/ACT branch of the IEUA, 2015.
25
Commission, 2019).
26
John Quessy, "Anti-Discrimination laws: What's wrong?", The newspaper of the NSW Independent
Education Union and the NSW/ACT branch of the IEUA, 2018.
27
"CHAPTER 7 – Parliament of Australia", Aph.gov.au, 2020,
https://www.aph.gov.au/parliamentary_business/committees/senate/legal_and_constitutio
nal_affairs/completed_inquiries/2008-10/sex_discrim/report/c07.
28
Anna Patty, "Call to fix maternity loophole", Sydney Morning Herald, 2017.
away. However, when she lodged a complaint she was informed that there was an
exemption under the Anti-Discrimination Act which applied. 29 Unfortunately, this is still a
common occurrence however, with a review on the exemptions of the Act these types of
issues could be reduced and avoided all together.
In conclusion, the federal Anti-Discrimination Act 1977 covers most issues and concerns of
discrimination. However, it also allows for certain groups or individuals to be exempt from
those laws. Consequently, this raises concerns in how these groups or individuals may carry
out this exemption. By looking at the applications of exemptions in a case by case procedure
this would ensure that there is equality and more justice in allowing groups or individuals to
be exempt from the Act. This will also allow for more equality and fair treatment amongst
all individuals and ensure there is no competing rights.
Bibliography
Articles/ Books
Free & Equal: Priorities For Federal Discrimination Law Reform (2019)

Patty, Anna, "Call To Fix Maternity Loophole" Sydney Morning Herald (2017)
Quessy, John, "IEU Calls For End To Anti-Discrimination Exemptions" The newspaper of the
NSW Independent Education Union and the NSW/ACT branch of the IEUA (2015)
Quessy, John, "Anti-Discrimination Laws: What's Wrong?" The newspaper of the NSW
Independent Education Union and the NSW/ACT branch of the IEUA (2018)
29
Anna Patty, "Call to fix maternity loophole", Sydney Morning Herald, 2017.
Websites
"CHAPTER 7 – Parliament Of Australia", Aph.Gov.Au (Webpage, 2020)
<https://www.aph.gov.au/parliamentary_business/committees/senate/legal_and_constituti
onal_affairs/completed_inquiries/2008-10/sex_discrim/report/c07>
<https://www.antidiscrimination.justice.nsw.gov.au/Pages/adb1_antidiscriminationlaw/adb
1_exemptions/adb1_exemptions.aspx>

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Nurtasya Afalon (45217742) – Research Paper LAWS5011

Australian Anti-Discrimination Laws

Should permanent exemptions/ exceptions remain part of federal anti-discrimination laws

Free & Equal: Priorities For Federal Discrimination Law Reform (2019)

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