You may need an exemption to the
Anti-Discrimination Act 1977 (NSW) (ADA) if you want to favour a particular group of people in situations where that would otherwise be unlawful under the ADA.
The ADA has a three-part structure:
Types of discrimination and the situations in which they are unlawful
There are some largely commonsense exceptions listed in the ADA where it is OK to target jobs or services towards a particular group. For example, the Act specifically states that it is OK to advertise a job for one sex only, if being that sex is clearly an essential requirement of the job – such as recruiting a woman to clean female toilets or a man to clean male toilets.
The ADA also specifically states that a service provider can provide services or facilities to meet the "special needs" of a particular race or age group – for example, English language classes that are only for people from non-English speaking backgrounds.
Specific exceptions like these allow you to favour a particular group in particular situations, and therefore exclude and discriminate against other groups.
There is no need for you to apply for an exemption in these circumstances. In many other circumstances, you must obtain an exemption under the ADA if you want to favour one particular group, and therefore discriminate against other groups.
You won’t need an exemption:
If being of a particular race/ethnic group is a genuine occupational qualification, your job advertisement should say: "[Name of the employer] considers that being [particular race] is a genuine occupational qualification under s 14 of the Anti-Discrimination Act 1977 (NSW)."
You will need an exemption:
You won’t need an exemption:
If being of a particular sex is a genuine occupational qualification, your advertisement should say: "[Name of employer] considers being a woman/man is a genuine occupational qualification for this position under s 31 of the Anti-Discrimination Act 1977 (NSW)."
You may need an exemption:
If being of a particular age group is a genuine occupational qualification, your advertisement should say: "[Name of employer] considers being a [particular age] is a genuine occupational qualification for this position under s 49ZYJ of the Anti-Discrimination Act 1977 (NSW)."
in all other situations. In general, to get an exemption you will need to show that targeting the job, service or program will help redress past or present discrimination experienced by the particular age group.
There are two separate ways to apply for an exemption. The first is to apply to the President of the Anti-Discrimination Board under s 126 of the ADA. Under this section, the President can grant an exemption to allow discrimination on any ground and in any area covered by the Act.
The second way is to apply to the Minister (currently the Attorney General) under s 126A of the ADA for a certificate that a special needs program or activity can operate in a discriminatory manner. The Minister cannot grant a certificate for race or age discrimination.
Section 126 exemptions generally relate to employment and recruitment, for example targeted jobs or recruitment programs for a particular group covered by the ADA.
Since 1 January 2009, the President of the Anti-Discrimination Board grants exemptions under s 126. He or she must make a decision on a s 126 application within 60 days after the application is made.
In deciding whether to grant an exemption, there are a number of factors which the President
must take into account. These factors are set out in the
Anti Discrimination Regulation 2009 (the
Regulation). For more information about the factors see under "If you are applying for a s 126 exemption" below.
These factors are not necessarily the only things that the President will take into account in considering an application under s 126. He or she may consider any other relevant issues as well - for example he or she may consult with bodies or persons that may be appropriate in the circumstances.
An exemption under s 126 can be granted for a maximum period of 10 years, but can be renewed or varied if you reapply. Most current exemptions have been granted for periods of less than ten years.
In some circumstances an applicant or an affected person may apply to the NSW Civil and Administrative Tribunal for a review of the decision of President in relation to an exemption.
Section 126A exemptions apply to special needs programs, activities or facilities which promote access for certain groups of people affected by unlawful discrimination. These groups are identified under Parts 3-4C of the ADA as people covered on the grounds of their:
Programs to meet the "special needs" of a particular race or age group will not usually require an exemption because the ADA specifically provides an exception for such programs (see "What are the exceptions where discrimination is allowed?" above).
Section 126A exemptions are currently certified by the NSW Attorney General. He or she grants a s 126A exemption where he or she is satisfied that the primary purpose of the special needs program or activity is the promotion of equal or improved access for members of a group affected by discrimination on one of the grounds listed above. The Attorney General usually seeks the advice of the Anti-Discrimination Board before granting a s 126A exemption.
There is no maximum time limit for s 126A exemptions specified in the ADA. They may be granted for a specific period or for an indefinite period.
An applicant under s 126A can apply to the NSW Civil and Administrative Tribunal for a review of the decision of the Attorney General on their application.
For more details of how to apply for an exemption under s 126 or s 126A, see "How do I apply for an exemption" below.
In general, an exemption is likely to be granted when you are still upholding the principles of anti-discrimination and promoting equal opportunity between all people. Many exemptions are granted where the purpose of the targeted job or service is to give the particular group an opportunity that was previously unavailable to them, in order to help redress past disadvantage or discrimination. Generally to get an exemption you need to provide evidence that this is the case
Examples of exemptions granted include:
List of current Section 126 exemptions
List of current Section 126A exemptions
Exemption likely to be granted:
A welfare agency wants to provide a counselling service for women who have experienced domestic violence. In its s 126A exemption application the agency provides evidence that women who have experienced domestic violence can recover their self-esteem more effectively in an environment where only women are present.
A counselling service wants to provide training in family skills for men only. In its s 126A exemption application the service provides evidence that the issues relating to learning family skills are very different for men and women, and that men find it difficult to deal with self-esteem issues in a mixed group. The evidence provided shows that it is not appropriate to conduct the training for both men and women together, and that classes for men only would meet the special needs of men who wish to learn about family skills.
Exemption unlikely to be granted:
A tertiary college wants to provide women only cooking classes. The college states in its exemption application that it wants to do this because it thinks that women would enjoy attending a class without men.
An organisation wishes to set aside several positions for Aboriginal and Torres Strait Islander people because their research shows that they are traditionally under-represented in the particular industry. In its s 126 exemption application the organisation shows that it intends to provide training and ongoing support for new recruits and has ensured that there will be career opportunities for them in the future.
An employer wants to employ more men to work in their organisation as they feel there are enough women in their workforce and that staff get on better when there is a gender balance.
Decisions on s 126 exemptions will be made within 60 days from the date the application is received by the Anti-Discrimination Board.
Section 126A exemptions are usually finalised within 10 weeks after receipt. This may vary depending on the complexity of the application.
Contact Anti-Discrimination Board’s Legal Officer to discuss whether you need an exemption and to find out what kind of exemption you need to apply for.
S 126 exemptions
Section 126 applications should be sent in writing to the President of the Anti-Discrimination Board. You should include the following information in your application:
When you are applying for a s 126 exemption, you should also address
each of the six factors in the Regulation which the President must take these into account in deciding whether to grant you an exemption. This will save time in processing your application.
The factors are as follows:
You should take care to provide all the required information in your application, and to respond quickly to requests for further information. The President only has 60 days to make his or her decision, and may not be in a position to grant your application if he or she does not have enough information from you at an early stage in the application process.
President of the Anti-Discrimination Board of NSW, PO Box W213, Parramatta Westfield NSW 2150, marked "Attention: Legal Officer".
S 126A exemptions
Section 126A applications should be sent to the NSW Attorney General. In your letter you should set out your reasons for wanting the exemption. Include the following information in your application:
The NSW Department of Justice will send the application to the Anti-Discrimination Board for advice on whether or not the exemption should be granted. The Board’s Legal Officer may contact you for further information.
Send your application to the Attorney General, GPO Box 5341, SYDNEY NSW 2001, marked "Attention: ADB Exemptions Officer, Community Relations Division".
S 126 exemptions
If the President of the Anti-Discrimination Board decides to grant you an exemption, you will receive a letter advising you that the exemption has been granted, what it covers and the period of the exemption.
If the President decides not to grant the exemption, you will receive a letter notifying you that the exemption has been refused.
S 126A exemptions
The Anti-Discrimination Board will make a recommendation to the NSW Attorney General on your application, and the NSW Attorney General will make the final decision. If the Attorney General decides to grant you an exemption, you will receive a letter advising you that the exemption has been granted, what it covers and the period of the exemption.
If the Attorney General decides not to grant the exemption, you will receive a letter notifying you that the exemption has been refused.