Equal opportunity is about ensuring everyone has a fair go. Sometimes, to overcome discrimination, different approaches are required for different groups – equality does not necessarily mean treating everyone the same way. The law recognises that disadvantaged groups may need special assistance to ensure they receive the same opportunities as everyone else. This understanding is at the heart of special measures.
What is a special measure?
The Equal Opportunity Act 2010 recognises that when we treat everyone the same it can have a different outcome, or unequal results, for people.
Therefore, the Act allows and encourages people and organisations to treat people differently in specific situations if those people or organisations are taking action to address genuine equality for disadvantaged groups.
This action is called a special measure and it aims to achieve ‘substantive equality’.
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Please note, the following information is a guide only. To avoid doubt about whether your proposed action is a special measure, please check the the Equal Opportunity Act or seek further legal advice.
What do special measures do?
Special measures promote substantive equality for a group of people who have one (or more) protected attributes, for example, race, sex, disability.
Substantive equality means recognising that some groups have been disadvantaged by inequality and past discrimination. It means understanding that some groups may need special assistance to address that disadvantage, rather than simply being treated equally or the same in a formal sense.
Examples of special measures
- A company has a very little Aboriginal representation among its employees. The company decides to advertise for and employ Aboriginal people to help address this diversity issue.
- A city council hosts two women’s-only events, targeted at young women in the community who, due to cultural and religious reasons, wouldn’t otherwise have the opportunity to attend mixed-sex events.
When does a special measure stop being a special measure?
Once substantive equality has been achieved, the special measure must be removed unless its removal would result in the target group again becoming disadvantaged.
This means that special measures are a balancing mechanism designed to help equality but not to unfairly advance one group over another once the playing field is even.
What does a special measure require?
Section 12 of the Act sets out the requirements for a special measure. A person or organisation seeking to establish a special measure to advance a group of people must have evidence to show that they meet each of the requirements outlined below.
In the Victorian Civil and Administrative Tribunal (VCAT) decision of Waite Group (Human Rights)  VCAT 1258 usefully set out each of the requirements for a special measure and raised questions that may be asked to assess whether proposed conduct will satisfy each requirement. Below is a summary of the requirements and VCAT’s suggested questions.
Note: Each of the three requirements outlined below must be satisfied in order to be considered a special measure. In addition, each requirement must be substantiated. Statistical information, publications, surveys and other documents will assist in providing evidence for a special measure.
Requirement 1: The conduct (action or measure) is directed to members of a group with a particular attribute
To be a special measure it is necessary to first identify the group with the attribute. Special measures must be directed to members of a group with a particular attribute listed in section 6 of the Act, as follows:
- employment activity
- expunged homosexual conviction
- gender identity
- industrial activity
- lawful sexual activity
- marital status
- parental or carer status
- physical features
- political belief or activity
- religious belief or activity
- sexual orientation
- personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.
There may be more than one attribute, for example a measure may be directed at children (under the attribute of age) with disabilities.
In order to identify the group with an attribute, VCAT suggests the following questions may be raised:
- Is the proposed conduct directed at or concerned with a group of people who share one (or more) of the attributes listed in section 6 of the Act?
- Does the proposed conduct fall within one of the areas of public life in Part 4? (The Commission notes that it is not a requirement under the Act that conduct for a special measure fall within an area of activity under Part 4.)
- How would the group or group members be most accurately described?
Requirement 2: The purpose of promoting or realising substantive equality
Requirement 3: Other essential criteria
To qualify as a special measure under the Act, a person or organisation must also be satisfied that the following factors have been met.
Do people or organisations need to make an application to VCAT for a special measure?
No. People and organisations do not need to apply or get approval from the VCAT for a special measure like they do for an exemption from the Act.
The Act permits people to make their own assessment as to whether they satisfy each of the requirements for a special measure and have sufficient evidence to base their assessment.
People and organisations may need some advice, including legal advice, to help them make their assessment.
Once satisfied, people and organisations may simply get on with the special measure to address substantive equality for the particular group.
If undertaking a special measure, should people apply to VCAT for an exemption?
No. Where a measure or action is a special measure it will not constitute unlawful discrimination. This means that a person or organisation undertaking a special measure to promote or realise substantial equality for a particular group will not need to apply for an exemption under the Act.
When should I apply for an exemption under the Equal Opportunity Act?
If a person or organisation is not satisfied that what is proposed is a special measure, or they are unsure, they may need to reconsider their approach or apply for a temporary exemption at VCAT.
Find out more about exemptions.