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5. Applying for exemptions for targeted recruitment other than in New South Wales

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As outlined in this guideline, in all jurisdictions except NSW, the granting of an exemption is not a legal prerequisite for conducting a targeted recruitment strategy, as long as the recruitment program meets the requirements of a special measure.

This is because the purpose of an exemption is to exclude the application of a particular law to certain conduct which would otherwise breach that law. However, an action that meets the requirements of a special measure will not be unlawful, because it already falls within a recognised exception to discrimination law. You do not need an exemption for something that is not unlawful.

Despite this, some employers may choose to apply for an exemption for a targeted recruitment strategy, and may be granted one in some jurisdictions, even though the proposed conduct meets the requirements of a special measure. In Tasmania for example, the Anti-Discrimination Commissioner encourages organisations to apply for exemptions for targeted recruitment strategies for Aboriginal and Torres Strait Islander people (for further detail, see Appendix 3). Using the template contained in this guideline for demonstrating that a recruitment program is a special measure would increase the likelihood of an exemption being granted.

While in some jurisdictions an employer may be successful in obtaining an exemption from the relevant discrimination law for targeted recruitment, employers should generally be aware that:

  • Other than in NSW, special measure provisions are built into discrimination laws for the specific purpose of protecting actions which confer benefits on disadvantaged racial groups. The criteria for exemptions from these laws vary between jurisdictions.
  • Unless the targeted recruitment program meets the criteria for a special measure, getting an exemption from the discrimination law in one state or territory will not mean the conduct will be lawful in another jurisdiction.
  • There is no exemption process under the federal Racial Discrimination Act. This means that even if an employer is granted an exemption under a state or territory discrimination law, its targeted recruitment program must still meet the criteria for a special measure, outlined in section 2 of this guideline, to comply with the federal law.

 

When employers apply for exemptions to protect ‘special measure’ conduct, they may not be successful.[16] The granting of exemptions is discretionary, and the case law in some jurisdictions is inconsistent. Generally, the bodies with the power to grant exemptions consider whether an applicant requires an exemption in order to avoid breaching discrimination law. If the conduct meets the requirements for a special measure which is permitted under the relevant law, these bodies may refuse to grant an exemption. For example, in the case below, the Queensland Civil and Administrative Tribunal refused to grant an exemption to Downer EDI Mining because the company’s conduct was likely covered by the ‘special measure’ provision in s 105 of the Queensland Anti-Discrimination Act 1991.

Case study: Refusal to grant an exemption for a special measure

In 2013 Downer EDI Mining applied for an exemption from the Anti-Discrimination Act 1991 (Qld) in order to designate, advertise and appoint specific roles to Aboriginal and Torres Strait Islander people. The Queensland Civil and Administrative Tribunal dismissed the application on the basis Downer EDI Mining did not need an exemption, primarily because the recruitment was likely to meet the requirements of an ‘equal opportunity measure’ which was permitted under s 105 of the Act.

Downer EDI Mining appealed, arguing that it did need the exemption, as even if s 105 applied, the company would still be open to claims of discrimination from non-Indigenous applicants who applied for the positions. In Downer EDI Mining [2013] QCATA 276 the Tribunal rejected this appeal, holding that ‘the application of section 105 is arguably open to Downer EDI and in the circumstances ...there is no need or necessity to grant an [sic] discretionary exemption.’

 

Employers considering applying for an exemption will also need to factor in the time it will take for an exemption application to be processed and finalised. This may be an issue if the employer needs to fill a vacancy by a certain date.

For more information about the process of seeking, and likelihood of obtaining, an exemption for a targeted recruitment strategy in a particular jurisdiction, please contact the relevant discrimination or equal opportunity authority (details are in the following section).[17]


Notes

[16] For example in Victoria the Victorian Civil and Administrative Tribunal has dismissed applications for exemptions where the conduct is a special measure (because it is therefore not necessary to grant the applicant an exemption), but has made a declaration that the proposed recruitment is a special measure under s 12 of the Equal Opportunity Act 2010. For more information about the process in Victoria, contact the Victorian Equal Opportunity and Human Rights Commission.

[17] There are also factsheets available on the processes for applying for an exemption from the discrimination laws in Tasmania and Queensland: see Applying for Exemption under the Tasmanian Anti-Discrimination Act 1998, at http://www.antidiscrimination.tas.gov.au/exemptions/applying_for_an_exemption (viewed 15 June 2015); Applying to QCAT for an exemption under the Anti-Discrimination Act 1991(Qld), at http://www.adcq.qld.gov.au/resources/brochures-and-guides/fact-sheets/qcat-exemptions (viewed 15 June 2015)