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Appendix 3 –Targeted recruitment in Tasmania

In the event a complaint is made to the Anti-Discrimination Commissioner about targeted recruitment in Tasmania, the complaint (if not resolved through conciliation) would have to be referred to the Anti-Discrimination Tribunal for inquiry.

Under the Tasmanian Anti-Discrimination Act 1998, exceptions under the Act, including the special measures exceptions (sections 25 and 26), must be proven on the balance of probabilities.[20]

While the Anti-Discrimination Commissioner has some authority to determine whether or not a special measure exception properly applies, the Commissioner may not always have authority to determine that sections 25 and/or 26 apply to a complaint either at initial assessment or after investigation.

It would therefore be at the inquiry by the Tribunal that an employer would have to prove, on the balance of probabilities, that the exception applied to its conduct and, as a result, the conduct was not unlawful.

However, if an exemption is granted for targeted recruitment, the Anti-Discrimination Commissioner has express authority to reject or dismiss a complaint of conduct that falls within the scope of the exemption granted.[21]

Because of this, the Anti-Discrimination Commissioner encourages employers seeking to engage in targeted recruitment in Tasmania to apply for an exemption under the Anti-Discrimination Act 1998 (Tas). This provides protection against a complaint about any conduct that falls within the scope of the exemption granted. In applying for an exemption, providing material that satisfied the requirements set out in section 2 of this document is likely to be sufficient.

The Tasmanian Anti-Discrimination Commissioner has published information on how to apply for exemptions to the Anti-Discrimination Act 1998 (Tas) available here: http://www.antidiscrimination.tas.gov.au/exemptions/applying_for_an_exemption.

Notes

[20] Anti-Discrimination Act 1998 (Tas), s 101.

[21] Anti-Discrimination Act 1998 (Tas), s 64(1)(h).