The Law Handbook 2024

Chapter 11.1: Discrimination and human rights 993 progress to an elite competition and exclusion is necessary to enable participants to progress to national or elite-level competition. The exception permits the exclusion of one sex to facilitate participation in a sporting activity, where it is reasonable to do so. These exceptions apply only to people aged 12 years and older. • Political clubs (s 66A) A club established principally for a political purpose may exclude people from membership of that club or its management committee on the basis of political belief or activity. • Reasonable standards of dress, appearance and behaviour for students (s 42) An educational authority may set and enforce reasonable standards of dress, appearance and behaviour for students. A standard of dress, appear­ ance or behaviour is reasonable if the educational authority administering the school has taken into account the views of the school community. • Aged-based admission schemes and quotas (s 43) An educational authority may select students for an educational program on the basis of an admission scheme that has a minimum qualifying age or imposes quotas in relation to students of different ages or age groups. • Compliance with other laws (s 75) A person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of an Act (other than the Equal Opportunity Act), or an enactment (not under the Equal Opportunity Act). The respondent to a complaint must prove that an exception applies. This means that, even where an exception may apply to conduct, a person can still bring a dispute to the VEOHRC for dispute resolution, or apply to VCAT for the matter to be heard at the tribunal. Commonwealth legislation and the Equal Opportunity Act may vary in relation to the exceptions that are available or the way in which they are worded. It is therefore always advisable to check both before choosing the most appropriate forum to bring a dispute or lodge a complaint. To find out about exceptions that apply under Commonwealth legislation, contact the Australian Human Rights Commission (see ‘Contacts’ at the end of this chapter). Special measures in the Equal Opportunity Act Under the Equal Opportunity Act (s 12), it is not discrimination for a person to take special measures, done in good faith, for the purpose of promoting or realising substantive equality for members of a group with a particular attribute. Broadly, a special measure is something designed to alleviate systemic disadvantage suffered by a group of people with a particular attribute. A special measure needs to be appropriate, proportionate and justified because the members of the group have a particular need for advancement or assistance. The measure must also be reasonably likely to achieve its remedial purpose. The special measures provision does not permit a special measures program or service to continue after substantive equality has been achieved, unless removing it would result in the target group again becoming disadvantaged. Therefore, special measures are a balancing measure. They facilitate equality but do not advance one group over another once the playing field is even. It is not necessary to seek approval from the VEOHRC or VCAT to take a special measure. If the criteria in section 12 is met and the conduct amounts to a special measure, then it is not discrimination and is not unlawful under the Equal Opportunity Act. There is also no need to seek an exemption from the operation of the Equal Opportunity Act at VCAT. For more information about special measures in the Equal Opportunity Act, see the VEOHRC’s website (www.humanrights.vic.gov.au) . Exemptions from the Equal Opportunity Act VCATcangrant temporary exemptions fromtheEqual Opportunity Act (s 89) to permit conduct that would otherwise be unlawful. A person or organisation may apply for an exemption in relation to specific conduct. If granted, the conduct relevant to the exemption is not unlawful for the period specified by VCAT. VCAT must take into account the following factors when determining whether to grant, renew or revoke an exemption (s 90): • whether the proposed measure is unnecessary (e.g. because it is a special measure, because an exception applies, or because an exemption already applies);