Exemption applications under the Sex Discrimination Act 1984 (Cth)
Legal
Section 44 of the Sex Discrimination Act 1984 (Cth) ("the Act") gives the Commission the power to grant temporary exemptions from certain provisions of the Act.Temporary exemptions may be granted for up to five years at a time and may be granted subject to specified terms and conditions. The effect of a temporary exemption is that discrimination covered by the exemption is not unlawful under the Act while the exemption remains in force.Because the Act already provides for both permanent exemptions (Division 4 Part II of the Act - ss 30-43) and special measures (s 7D) and because any temporary exemption must be consistent with the objects of the Act the circumstances in which it will be necessary or appropriate to grant such exemptions will be limited.
The Act does not set out in any detail the criteria or procedures that the Commission should use in considering applications for temporary exemption. Section 44 of the Act simply provides the Commission with a discretion to grant such exemptions.
Because of the importance of the power to grant exemptions, and its potential impact on rights and obligations under the Act, the Commission has developed criteria and procedures to guide the Commission in exercising this discretion. By publishing these criteria and procedures, the Commission also aims to assist interested parties in having an effective say in decisions about possible exemptions that may affect their interests.
Current Applications and Decisions
Lesbian Action Group temporary exemption application
The Australian Human Rights Commission has received an application from the Lesbian Action Group for a temporary exemption to the Sex Discrimination Act 1984 (Cth).
The applicant has requested an exemption to host an event restricted to female born lesbians. The exemption is sought for five years.
The Commission has the power to grant temporary exemptions under section 44 of the SDA.
Current application
Relevant legislation
The relevant legislation is the Sex Discrimination Act 1984 (Cth).
Commission guidelines
The Commission has Guidelines for temporary exemptions under the SDA.
Request for submissions
The Commission invited interested parties to make submissions on this application. The closing date for submissions was Tuesday, 29 August 2023, except where an extension of time was granted until Friday, 1 September 2023. The Commission received a total of 236 submissions.
Submissions from individuals
Of the submissions received by the Commission, 205 were received from individuals. 123 individuals' submissions supported the granting of the exemption, while 82 individuals' submissions opposed the granting of the exemption. The Commission does not intend to publish each of these individual submissions.
Submissions from organisations
The Commission has received the following submissions from organisations:
| Organisation | Submission |
|---|---|
| Affiliation of Women's Action Alliances (AAWAA) | |
| Aleph Melbourne | |
| Antypical Hair and Gallery | |
| Equal Opportunity Tasmania (EOT) | |
| Euphoria Social | |
| Fair Game Australia | |
| Feminist Legal Clinic | |
| IWD Meanjin | |
| Lesbian Bill of Rights International (LBOR International) | |
| Lesbian Rights Australia | |
| LGB Alliance | |
| LGB Tasmania | |
| Mamma Chen's | |
| Melbourne Bisexual Network (MBN) | |
| Q+Law | |
| Queensland Women's Action Alliance (QWAA) | |
| Rainbow Rights Watch | |
| Renters and Housing Union (RAHU) | |
| Scottish Lesbians | |
| Triple Bi-Pass | |
| Victorian Commissioner for LGBTIQ+ Communities | |
| Victorian Pride Centre | |
| Victorian Trades Hall Council (VTHC) | |
| Victorian Women's Guild (VWG) | |
| VISIBLE Lesbian Group | |
| Vixen | |
| Western Australian Women's Action Alliance (WAWAA) | |
| Women's Rights Network Australia (WRNA) | |
|
A joint submission on behalf of the following 15 organisations:
|
Preliminary view of the Commission
On 25 September 2023, the Commission issued its preliminary view in relation to LAG's application. The preliminary view can be accessed here:
The Commission invited interested parties to make submissions in response to the preliminary view. The closing date for submissions was Tuesday, 3 October 2023. The Commission received a total of 262 submissions, consisting of submissions from 20 organisations and 242 individuals. The Commission does not intend to publish each of the individual submissions.
Submissions from organisations
| Organisation | Submission |
| AAWAA | |
| Coalition of Activist Lesbians (CoAL) | |
| Fair Game Australia |
and
|
| Feminist Legal Clinic | |
| Incandescent Women | |
| IWD Meanjin Brisbane | |
| Lesbian Action for Visibility in Aotearoa (LAVA) | |
| LBOR International | |
| Lesbian Action Group (LAG) | |
| Lesbian Rights Australia | |
| LGB Alliance | |
| Northern Rivers Gender Critical | |
| QLD Women's Action Alliance | |
| Radical Lesbian Feminists United! (RFLU) | |
| Scottish Lesbians | |
| VISIBLE Lesbian Group | |
| WA Women's Action Alliance (WAWAA) | |
| Woman Up Queensland | |
| Women's Rights Network Australia (WRNA) |
Decision
On 12 October 2023, the Commission gave notice of its decision. The decision can be accessed here:
The Commission has prepared a summary of the decision:
Save the Children temporary exemption application
The Australian Human Rights Commission has received an application from Save the Children for a temporary exemption to the Sex Discrimination Act 1984 (Cth).
Save the Children has contracted with Telstra Health, DVConnect and Marninwarntikura Women's Resource Centre, in providing workers for the 1800 Respect national hotline. Save the Children would like to hire only female-identifying workers for this service. The exemption is sought for two years.
The Commission has the power to grant temporary exemptions under section 44 of the SDA.
Current application
Relevant legislation
The relevant legislation is the Sex Discrimination Act 1984 (Cth).
Commission guidelines
The Commission has Guidelines for temporary exemptions under the SDA.
Request for submissions
The Commission invited interested parties to make submissions on this application. The closing date for written submissions was Friday, 17 February 2023.
Decision
On 23 August 2023, the Commission gave notice of its decision to grant the exemption. The decision can be accessed here:
Past Applications and Decisions
| Applicant |
Summary |
Submissions | Decision | Date of Decision | Date Gazetted | Date of Expiry |
|---|---|---|---|---|---|---|
| Australian Bureau of Statistics | The applicant requested an exemption to allow for the recruiting, training and allocating the work of the Personal Safety Survey (PSS), to primarily female interviewers. |
|
Decision to grant | 6 September 2016 | 14 September 2016 | 30 June 2017 |
| Aboriginal Family Violence Prevention and Legal Service Victoria | The applicant requested an exemption to allow it to advertise for and employ women in a number of roles. This is because the majority of its clients are women and children who have experienced violence and/or sexual assault by men. The applicant states that working closely with men may further traumatise its clients, cause them discomfort or inhibit full disclosure by them. |
|
Decision to grant - the exemption was granted for five years |
6 August 2013 | 6 August 2013 | 6 August 2018 |
| CJC Operations trading as Curves Gym |
The applicant requested an exemption to allow it to operate its gym facilities catering to female-only clients. Curves offers programs, equipment and an environment that is specifically designed for women and has applied for an exemption on the basis that its purpose is to promote a relaxed and safe environment for women to feel comfortable while exercising. |
Application withdrawn | ||||
| Auto & General Insurance Company Ltd, A &G Insurance Services Ltd, Australian insurance Holdings Pty Ltd | The applicant requested an exemption to allow them to price their policies differentially based on a customer's marital status, according to actuarial data about the relative claims risk associated with different marital status. |
|
Decision to decline | May 2012 | ||
| Australian Bureau of Statistics |
The applicant requested an exemption to allow it to predominantly use female interviewers for conducting the Personal Safety Survey (PSS).
|
Decision to grant | 2 February 2012 | 31 December 2012 | ||
| Deli Women & Children's Centre |
The applicant requested an exemption to provide therapeutic services to only female clients and to only employ females to provide therapeutic and children's services. |
|
Decision to decline | 22 November 2009 | ||
| Griffith City Council |
The applicant requested an exemption to allow restrited access to its gymnasium and swimming pool to women only, for regular two and a half hour sessions, outside of the applicant's ordinary operating hours. |
|
Decision to decline | 20 June 2008 | ||
| Crisis Support Services |
The applicant requested an exemption to allow Crisis Support Services Inc an exemption to allow the applicant to advertise nationally for and recruit male counsellors to join its Graduate Trainee Program, and at the end of the Program, to offer employment to as many male counsellors who have completed the Program as it considers appropriate. |
|
Decision to grant | 12 January 2007 | 12 January 2007 | 12 January 2008 |
| Ballarat Health and Fitness Pty Ltd | The applicant requested an exemption to allow it to operate an exercise and health centre for males only from 16 years of age. |
|
Decision to grant | 7 November 2005 | 16 November 2005 | 6 November 2010 |
| Lourdes Hill College |
The applicant requested an exemption to allow advertisement for a female Dean of Boarding, Assistant Dean of Boarding and Boarding Supervisors' to be employed at the College. The College is described in the application as a 'Catholic, all girls, secondary Boarding School, under the care of theGood Samaritan Sisters'. |
|
Decision to decline | 12 May 2005 | ||
| Australian Bureau of Statistics |
The applicant requested an exemption to allow it to provide training for conducting the Personal Safety Survey (PSS), and to allocate the work of the PSS to primarily female interviewers from its current panel of employee interviewers. The exemption was granted on the condition that when arrangements are being made with a respondnet to be itnerviewed, the respodent should be given a choice as to the gender of their interviewer, or they can advise that they do not have a preference. |
|
Decision to grant | 1 August 2005 | 2005 | 30 November 2005 |
| Annetco Inc (formerly WiN Support Services Pty) |
The applicant requested an exemption to allow, on the basis of sex, the advertising of vacant positions and the offering of employment and to allow the allocation of work to existing employees. |
|
Decision to decline | 24 November 2004 | ||
| Catholic Commission for Employment Relations |
The applicant requested an exemption to allow the Trustee to offer teacher training scholarships to male students only. The proposed financial support/incentives would be offered to HSC students to enrol in primary teacher training at university for the 2003 academic year. Male students accepting the scholarship would commit to working within Catholic primary schools for a fixed period following completion of the teachig degree. |
|
Decision to decline | 27 February 2003 | 27 February 2003 | |
| Department of Immigration and Multicultural Affairs | Exemption to allow female and male detainees, up to the age of 18, at any immigration detention facility eligibility, to participate in alternative detention, namely accomodation in houses in Woomera. |
|
Decision to grant | September 2003 | 15 October 2003 | 19 September 2003- 18 September 2005 |
| Department of Immigration and Multicultural Affairs | Extension of time for Woomera residential housing project. | Decision WORD | Decision to grant | 14 October 2002 | 6 February 2002 | 14 October 2002 - 14 October 2003 |
| Department of Immigration and Multicultural Affairs |
Exemption to allow Woomera residential housing project whwereby female and male detainees up to the age of 12 at Woomera Immigration Reception and Processing Centre will be eligible to participate in alternative detention arrangements, namely accomodation in houses outside the Centre. |
Decision WORD | Decision to grant | 7 August 2001 | 10 October 2001 | August 2001-August 2002 |
Click on the following links for further information:
COMMISSION GUIDELINES
- Guidelines for Exemption applications under the Sex Discrimination Act 1984
- 1996 Guidelines for Special Measures under the Sex Discrimination Act 1984
COMMISSION NOTICES ON APPLICATIONS FOR TEMPORARY EXEMPTIONS
2016
- Temporary Exemption Application: CJC Operations, trading as Curves Gym (withdrawn)
- Temporary Exemption Application: Australian Bureau of Statistics or
2012
- Temporary Exemption Application: Auto & General Insurance Company Limited, A & G Insurance Services Limited, Australian Insurance Holdings Pty Ltd Word or PDF
- Temporary Exemption Application: Australian Bureau of Statistics or
2011
2009
- Decision to decline to grant a temporary exemption sought by The Deli Women & Children's Centre Inc Word or PDF
2008
2007
2005
- Decision to grant a temporary exemption sought by Ballarat Health and Fitness Pty Ltd for a male only gym in Ballarat and decision to decline to grant a request for exemption to employ men only (expires 6 November 2010)
- Decision to grant a temporary exemption sought by the Australian Burea of Statistics (expired)
- Decision to decline to grant a temporary exemption sought by Lourdes Hill College
2004
- Decision to decline to grant a temporary exemption sought by Annetco Inc (formerly WiN Support Services Pty)
- Decision to grant a temporary exemption sought by the Catholic Education Office after new application offers equal number of male and female scholarships (expired)
2003
- Decision to decline to grant an exemption sought by the Catholic Education Office Scholarships for Male Trainee Teachers
- Decision to grant a temporary exemption sought by the Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA") (expired)
2002
- Decision to grant a temporary exemption sought by the Civil Aviation Safety Authority (expired)
- Decision to grant a temporary exemption sought by the Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA") for extension of Woomera residential housing project exemption (expired)
- Decision to grant interim exemption sought by the Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA") for extension of Woomera residential housing project exemption
2001
- Decision to grant temporary exemption sought by the Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA") for exemption to allow alternative detention arrangements for female detainees and male detainees up to the age of 12 at the Woomera Immigration Reception and Processing Centre (expired)