Appendix 2 – Applying for an exemption from the Anti-Discrimination Act 1977 (NSW)

The Anti-Discrimination Board NSW has published guidelines on how to apply for exemptions to the Anti-Discrimination Act 1977 (NSW), available here: http://www.antidiscrimination.justice.nsw.gov.au/Pages/adb1_antidiscriminationlaw/adb1_exemptions/adb1_exemptions.aspx.

An employer wanting to conduct targeted recruitment would need to apply for the exemption to the President of the Anti-Discrimination Board NSW under s 126 of that Act (unless the employer can rely upon the genuine occupational requirements exception in s 14).

The Anti-Discrimination Board’s guidelines set out that an exemption is likely to be granted ‘where the purpose of a targeted job is to give the particular group an opportunity that was previously unavailable to them, in order to redress past disadvantage or discrimination.’ The guidelines give the following as an example of an employment exemption that is likely to be granted:

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.

In recent years applications for exemptions for recruitment of Aboriginal and Torres Strait Islander people have been the most common type of exemption applications received by the Anti-Discrimination Board NSW.

In the guidelines the Anti-Discrimination Board lists the information an employer must provide to the President as part of their application, and the six criteria that the employer must address to convince the President to grant the exemption.[18] Much of the information mentioned above in this guideline as necessary to establish that a recruitment program is a special measure would be relevant to an application for an exemption under s 126 of the NSW Act. For example, to be granted an application the employer must address:

  • how targeting the position, service or program would further equal employment opportunity in its workplace – this is very similar to requirement 2 of a special measure
  • how long the employer would like the exemption for and the reasons for that length of time – this relates to the requirement 5 that a special measure not continue once it has achieved its purpose
  • whether the proposed exemption is appropriate or reasonable – very similar to requirement 4 of a special measure
  • whether the proposed exemption is necessary – same as for requirement 1 of a special measure, an employer can demonstrate necessity by providing recent statistical information about the disadvantage suffered by Aboriginal and Torres Strait Islander peoples
  • whether there are any non-discriminatory ways of achieving the objects or purposes for which the proposed exemption is sought – this is also related to requirement 4 for a special measure (particularly the concept of proportionality). Much of the information which would address that requirement would be relevant here – particularly any evidence that past non-targeted recruitment strategies used by the employer did not increase its number of Aboriginal or Torres Strait Islander employees
  • whether the proponent of the proposed exemption has taken reasonable steps, or is able to take any reasonable steps, to avoid or reduce the adverse effect of a particular act or action before seeking the exemption – to show this an employer could point to other recruitment programs it runs which are not restricted to Aboriginal and Torres Strait Islander persons, and therefore provide employment opportunities to non-Indigenous persons.
  • the public, business, social or other community impact of the granting of the proposed exemption – an employer can refer here to the positive impact that the targeted recruitment will have in terms of increasing employment of Aboriginal and Torres Strait Islander peoples
  • any conditions or limitations to be contained in the proposed exemption – note that the duration of an exemption will generally be tied to the length of time the employer demonstrates it will be funding the program (i.e. the position/s) for.

An exemption under s 126 of the NSW Act can be granted for a maximum of 10 years.[19]

Employers recruiting in NSW must also be able to show that a targeted recruitment strategy meets the requirements of a special measure (set out in section 2 of this guideline), even if they are granted an exemption from the Anti-Discrimination Act 1977 (NSW) to conduct the program (or can rely on the genuine occupational requirements provision). This is because an employer recruiting in NSW must comply with both the NSW Act and the Racial Discrimination Act 1975 (Cth) (the latter of which does not allow for exemptions).

Notes

 

[18] See Anti-Discrimination Regulation 2014 (NSW) reg 6.

[19] Anti-Discrimination Act 1977 (NSW), s 126(3).