Sometimes, the existing exemptions in the Anti-Discrimination Act 1991 may not apply to a specific activity that a person or organisation needs to undertake. In these circumstances you might apply to the tribunal for a temporary exemption from the operation of the Act.
What is a tribunal exemption?
A tribunal exemption is a temporary measure that allows conduct that would otherwise be unlawfully discriminatory. It protects against the making of a complaint under the Anti-Discrimination Act 1991.
For example, you might apply for a tribunal exemption if you need to:
- recruit only women or men for a particular position
- restrict social housing to vulnerable single people.
How long does a tribunal exemption last?
A tribunal exemption lasts for a period up to 5 years. The period is decided by the tribunal. If you still need the exemption after that, you can apply to renew it for an additional period of up to 5 years. Each renewal requires a new application.
What does the tribunal consider when granting an exemption?
The tribunal carefully considers whether an exemption is necessary, appropriate and reasonable. In making its decision, the tribunal considers:
- whether there are non-discriminatory ways to achieve the purpose
- whether the exemption is in the community’s interest
- whether the exemption is supported by other people
- whether the exemption is consistent with the objects and purposes of the Anti-Discrimination Act 1991
- the effect of not granting the exemption
- any submissions made by the Human Rights Commissioner
- whether the exemption is compatible with human rights under the Human Rights Act 2019.
Is the exemption compatible with human rights?
When deciding whether to grant or renew an exemption, the tribunal must ensure the decision is compatible with human rights.
The applicant must satisfy the tribunal that the exemption is compatible with human rights. The first step is to identify the human rights affected by the exemption.
The right to equality and non-discrimination in section 15 of the Human Rights Act 2019 will be affected by an exemption. Therefore, the exemption must be a measure to assist people disadvantaged by discrimination, or limit human rights reasonably and no more than is demonstrably justified in a free and democratic society. If the exemption is not a special measure, it needs to satisfy the test in section 13 of the Human Rights Act 2019. The exemption must be proportionate to achieve a legitimate purpose that outweighs the limitation of the human right or rights.
Other rights might also be affected by the exemption, for example, the right to privacy or the right to property.
How do I apply for a tribunal exemption?
For an exemption that is work-related, the application is made to the Queensland Industrial Relations Commission (QIRC). For all other exemptions, the application is made to the Queensland Civil and Administrative Tribunal (QCAT).
To apply, you’ll need to submit the correct form to the relevant tribunal:
- QIRC Form 83 (Queensland Industrial Relations Commission) for work-related exemptions.
- QCAT Form 20 (Queensland Civil and Administrative Tribunal) for all other exemptions.
Your application must include a detailed statement or affidavit explaining:
- why the exemption is necessary – this will include the purpose of the exemption
- how it is reasonable and appropriate
- whether there are other means of achieving the purpose of the exemption
- any support for the application, for example, you might have consulted those affected by or have an interest in the exemption
- how it is compatible with human rights.
Access the QIRC website | Access the QCAT website
What happens after I apply?
Once your application is lodged, the following process usually happens:
- Review and submissions
- A tribunal member may ask for more information.
- A copy of your application will be sent to the Human Rights Commissioner, who may provide submissions about the exemption and the process for dealing with it.
- Consultation
- The tribunal may require you to consult other groups or organisations and give them an opportunity to make submissions to the tribunal.
- Decision
- The tribunal will consider your application and any submissions. In most cases, the decision is based on the written material provided.
- The tribunal will give you a written decision, with reasons. The decision is usually published on the Queensland Supreme Court Library website and AustLII.
Appealing a tribunal decision
If you disagree with a tribunal’s decision about the exemption, you may be able to appeal. Appeals must be lodged within 21 days and are handled by:
- The QCAT Appeal Tribunal for Queensland Civil and Administrative Tribunal decisions.
- The Industrial Court of Queensland for Queensland Industrial Relations Commission decisions.
Depending on the grounds for appeal, you may need to request permission (leave) to appeal.
The Human Rights Commissioner is also able to appeal a decision on an application for exemption.
Tribunal exemption decisions
You can explore past tribunal decisions to see how exemptions have been granted or refused in the exemption decision table. It includes brief details about the circumstances of each case and the tribunal’s reasoning. View the exemption decisions tables.