Special measures

Contributed by The Victorian Equal Opportunity and Human Rights Commission and current to 24 March 2023

People can take positive steps known as 'special measures' to help disadvantaged groups. The concept of 'special measures' is well established under international human rights law, and Australian federal, state and territory anti-discrimination laws. See, for example, Sex Discrimination Act 1984 (Cth) s 7D; Racial Discrimination Act 1975 (Cth) s 8(1); Disability Discrimination Act 1992 (Cth) s 45.

Broadly, a special measure aims to overcome disadvantage in a group of people with a particular attribute who have faced discrimination in the past. Special measures are sometimes referred to as 'positive discrimination' or 'affirmative action'.

'Special measures' are set out in section 12 of the Equal Opportunity Act. The test for special measures in the Equal Opportunity Act operates as a positive tool for promoting substantive equality. In other words, special measures are now 'an expression of equality, rather than an exception to it'.(1)

Duty holders are explicitly permitted to afford different treatment to a group of people on the basis of a protected attribute, provided the treatment constitutes a 'special measure'. Specifically, section 12(2) states that 'a person does not discriminate against another by taking a special measure'.

Definition of a special measure

Section 12(1) of the Equal Opportunity Act describes a special measure as action taken 'for the purpose of promoting or realising substantive equality for members of a group with a particular attribute'. Section 12(4) states that this may be the sole purpose or one of multiple purposes for the action.

Under section 12(3) a special measure must be:

• undertaken in good faith for achieving the purpose of promoting or realising substantive equality for members of a group with a particular attribute
• reasonably likely to achieve that purpose
• a proportionate means of achieving the purpose
• justified because the members of the group have a particular need for advancement or assistance.

According to the Explanatory Memorandum to the Equal Opportunity Bill 2010 (Vic), 'these factors reflect the intention that the purpose of a special measure must be necessary, genuine, objective, and justifiable' (page 15). Further, the measure itself must be 'proportionate' and 'reasonably likely' to achieve its purpose. And under section 12(7) a measure will also cease to be a 'special measure' once it has achieved its purpose.

Section 12(1) of the Equal Opportunity Act also includes some examples of special measures as follows:

1. A company operates in an industry in which Aboriginal and Torres Strait Islanders are under-represented. The company develops a training program to increase employment opportunities in the company for Aboriginal and Torres Strait Islanders.
2. A swimming pool that is located in an area with a significant Muslim population holds women-only swimming sessions to enable Muslim women who cannot swim in mixed company to use the pool.
3. A person establishes a counselling service to provide counselling for gay men and lesbians who are victims of family violence, and whose needs are not met by general family violence counselling services.

Requirements for a special measure

Waite Group, specialists in board and director appointments, applied to the Victorian Civil and Administrative Tribunal (VCAT) for an exemption under the Equal Opportunity Act, Waite Group [2016] VCAT 1258 (Waite Group). It wished to use its business name 'Women's Search' to advertise for and recommend women as candidates for specific roles to help clients meet their diversity goals. Waite Group had promoted initiatives to increase women's representation in leadership roles. It was concerned its conduct could discriminate based on sex, and breach prohibitions on seeking discriminatory information and advertising. VCAT found the conduct was a special measure and an exemption was unnecessary.

In its decision,VCAT set out each of the requirements for a special measure. It also considered questions that can be asked to assess whether proposed conduct will satisfy each of the requirements for a special measure. These are discussed further below.

Conduct directed to group with a particular attribute

To qualify as a special measure, it is necessary to first identify the group with the attribute. There may be more than one attribute that is relevant. Special measures must be directed to members of a group with a particular attribute listed at section 6 of the Equal Opportunity Act – age, race disability or sex, for example. See the chapter on Protected attributes for more information.

The purpose of promoting or realising substantive equality

Identify the purpose

An action or program must be undertaken in good faith to promote or achieve substantive equality. This means the purpose of a special measure must be promoting equality for a group, rather than another purpose such as promoting commercial interests.

In some cases, a measure can have two purposes, one of which is the remedial purpose of addressing discrimination and promoting equality for a group. In this case, it is important to consider what elements of the program or measure are for a remedial purpose, and how you could explain what the measure does for the protected group.

Identify the inequality and its causes

A special measure is intended to address inequality. A person or organisation must be satisfied they have identified an inequality. It is also important to identify the cause of the inequality so action can be tailored to address both the inequality and its cause.

Conduct that is in good faith, fit for purpose, proportionate and justified

Conduct is in good faith

VCAT noted the information or evidence of the relevant organisation and its representatives about the conduct will be relied upon. It observed 'where a program is established or designed to achieve the purpose, good faith will usually be readily apparent' ( Waite Group [51]).

Conduct is reasonably likely to achieve the purpose

The measure must also be 'reasonably likely' to achieve its remedial purpose. In Waite Group , VCAT accepted the Victorian Equal Opportunity and Human Rights Commission's submission that this requires consideration of:

• the reason for the measure
• how the conduct will address the inequality
• whether the conduct is appropriately tailored to achieve a remedial purpose
• whether the applicant is capable of undertaking the conduct.

Proposed measure is proportionate

As VCAT found in Waite Group , to be a proportionate means of realising substantive equality for the group members, the proposed measure must demonstrate a reasonable relationship between the real purpose and the means sought to achieve it. The proposed conduct must match the purpose and should go no further than necessary to achieve that purpose ( Waite Group [63]).

Conduct is justified

To qualify as a special measure, a person must be satisfied the conduct is justified because the group needs assistance or advancement. While it is not necessary for the whole group to be disadvantaged, it does require that the overwhelming majority are disadvantaged.

Is consultation required?

Evidence of consultation with or the involvement of the group toward whom the special measure is directed – the beneficiaries – may not be necessary. It is important, however, that the beneficiaries wish for the measure to be taken. In Gerhardy v Brown [1985] HCA 119 Justice Brennan said:

This authority was cited in Waite Group , with Member Dea noting 'it is imperative that the proposed conduct is something sought or wished by the group' [52].

Conduct that is claimed to be a special measure, but that is unwanted or not welcomed by the beneficiaries, may not meet the test for a 'special measure' under the Equal Opportunity Act.

Effect of special measures

Where a special measure exists, a duty holder does not need to rely on a permanent exception or obtain a temporary exemption under the Equal Opportunity Act (discussed further below).

Special measures cease to be special measures

Under section 12(7), once the purpose of promoting or realising substantive equality has been achieved, the measure ceases to be a special measure. This reflects the role of special measures as a balancing mechanism designed to facilitate equality rather than unfairly advance one group over another.

Reasonable restrictions on eligibility for special measures

Special measures do not need to apply to all people with a particular attribute. Section 12(5) of the Equal Opportunity Act permits the imposition of 'reasonable restrictions on eligibility'. According to the Explanatory Memorandum of the Equal Opportunity Bill 2010, 'this recognises that the person may be subject to budgetary or other constraints and allows the eligibility for special measures to be limited to a subset of the target group, such as people in the target group who are of a particular age' (page 15).

Special measures and exemptions

Where a measure or action is a special measure, it will not constitute discrimination. There is no need to apply for an exemption under section 89 of the Equal Opportunity Act to exempt it from the operation of the Act.

Instead, a person must consider whether the proposed actions meet the test for a special measure, and whether everything they propose to do falls within this test. Organisations should be prepared to give sound reasons to explain how and why conduct is a special measure.

Under section 12 (6) if unlawful discrimination is alleged, a respondent may raise special measures as a defence. The onus is on the respondent to prove the conduct complained of was a special measure within the meaning of the Equal Opportunity Act.

In a number of cases, VCAT has made orders that certain measures were special measures under the Equal Opportunity Act, dismissing the applications for an exemption to be granted.

• Darebin City Council Youth Services sought an exemption to host two women-only events. The events targeted young women within the Darebin community who, for cultural and religious reasons, could not otherwise attend the events. The council also sought an exemption to employ only women during the events. VCAT declared the proposed conduct was a special measure for the purposes of section 12 and dismissed the application for an exemption.
  See Darebin City Council Youth Services v Victorian Equal Opportunity and Human Rights Commission [2011] VCAT 1693.

• Cummeragunja Housing and Development Aboriginal Corporation sought to advertise for and employ Indigenous people in its mental health worker, health worker, trainee and administration roles. The Corporation aimed to provide employment opportunities for Indigenous applicants and culturally appropriate health services to local Aboriginal people. Ninety five per cent of people using the services were Aboriginal. VCAT found these actions were special measures.
  See Cummeragunja Housing & Development Aboriginal Corporation [2011] VCAT 2237 [37]–[40].

• The University of Melbourne School of Engineering sought to advertise and employ only women in up to 20 academic roles within the Melbourne School of Engineering over a period of five years. It aimed to increase the number of women to 25 per cent of its workforce. VCAT was satisfied the conduct met the requirements of a special measure and was substantiated by the evidence. VCAT took into account the low representation of women in the school's academic workforce, the slow increase in the number of women and the modest aim of increasing that representation to 25 per cent.
  See The University of Melbourne (Melbourne School of Engineering) [2014] VCAT 887.

VCAT came to the same conclusion in a number of other exemption matters:

• An employer sought to advertise and employ Aboriginal staff only to care for Wurundjeri country. See Parks Victoria [2011] VCAT 2238.
• A training organisation wished to advertise for and employ only Aboriginal candidates to address under-employment of the group. See NECA Education and Careers Limited [2015] VCAT 838.The Ian Potter Museum of Art sought to advertise and employ an Indigenous person in the role of Vizard Foundation assistant curator. See The Ian Potter Museum of Art [2011] VCAT 2236 [21], [31], [34].
• V/Line Corporation applied for an exemption to conduct targeted marketing campaigns for V/Line careers to women in an effort to increase representation. See: V/Line Corporation - Exemption [2019] VCAT 1350.

In all these cases, VCAT was satisfied the proposed conduct would be undertaken in good faith and was reasonably likely to achieve the various purposes.

Notes

1 : Victoria, Parliamentary Debates, Legislative Assembly, 10 March 2010, 786 (Robert Hulls, Attorney General).

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