Exemptions and certifications

The Anti-Discrimination Act 1977 makes certain types of discrimination in certain public places against the law. The Act also sets out the exceptions where discrimination is allowed. For example, you are allowed to advertise a job looking for a person of a particular sex when it is an essential requirement of the job. 

The Act also allows for exemptions and certifications to be granted to allow favouring certain groups of people to improve access to certain jobs, programs, services or facilities. 

Exemptions and certifications are generally granted when an applicant can show that the proposed action will promote equal opportunity or benefit one of the groups listed in the Act that has experienced discrimination.

Consider the following sections to see whether an exemption or a certification is appropriate for your circumstances. 

What is an exemption?

An exemption is an approval that is granted by us under section 126 of the Act, giving permission to favour a particular group of people relating to specific jobs, programs or services.

Exemptions generally relate to employment and recruitment; however, you can apply for an exemption in relation to any area covered by the Act.

You can apply for an exemption to favour a particular group of people that have one of the characteristics protected by the Act. These characteristics are:

• age
• disability
• homosexuality
• marital status or domestic status
• race
• religion
• sex
• transgender status
• carer’s responsibilities (employment only). 

Examples of exemptions

• To designate positions for Aboriginal and Torres Strait Islander people.
• To provide scholarships or traineeships for Aboriginal and Torres Strait Islander people.
• To recruit women into 'non-traditional' roles, such as bus drivers, construction workers or in Science, Technology, Engineering, Mathematics and Medicine (STEMM) in academia. 
• To recruit a person with HIV/AIDS to work at a service that assists people who have HIV/AIDS. 
• To advertise and provide a graduate employment program for women in an area or industry where women are under-represented.
• To designate a role in a domestic violence service for men for men only or a service for women for women only.

To see more examples, you can view the current list of exemptions.

What is certification?

Certification is an approval granted by the NSW Attorney General under section 126A of the Act, certifying special needs programs, activities or facilities that promote access for certain groups of people affected by unlawful discrimination. 

You can apply for a certification for programs, activities or facilities that promote access for groups of people that have one of the characteristics protected by the Act. These characteristics are:

• disability
• homosexuality 
• marital status or domestic status
• sex (including pregnancy, breastfeeding and sexual harassment)
• transgender status
• carer’s responsibilities (employment only).

Certification can’t be given for a special needs program targeted to people of a particular race or age group because the Act specifically provides exceptions that allow these programs.

Examples of certifications

• A men’s support group for men only. 
• Programs to support career development for women.
• Accommodation or refuges for women and their dependent children only.
• Gymnasiums and fitness centres or programs for men only.
• Women’s only fitness services or programs.
• Services or programs for people with a particular type of disability only.
  

To see more examples, you can view the current list of certifications.

Role of ADNSW

ADNSW can provide you with general information about the process for applying for an exemption or certification and what sections of the Act that may be relevant to you. However, we cannot provide legal advice. We cannot advise whether an exception applies or if you require an exemption in your circumstances. This is a matter for your organisation and you may wish to seek independent legal advice.

How do I apply for an exemption?

1. Contact  us

Please read the following information carefully about what you should provide in your application. If you have any questions about the process, please call our enquiry service.

2. Write your application

Include the following information in your application:

a)  Tell us about your organisation:

• information about your organisation and what your organisation does
• your organisational structure (which may include workforce participation rates) and how the particular position or program fits within your organisational structure and why the position or program would benefit the group you are targeting
• any other policies or initiatives you have undertaken or implemented to address discrimination and how your proposed exemption corresponds to these.

b) Tell us about what you plan to do and why you are applying for an exemption:

• the sections of the Act that you want an exemption from (we can advise you about which sections of the Act apply)
• how long you would like the exemption for and the reasons for that length of time
• an outline of the scope and terms of the exemption (e.g. details of the positions you wish to designate or an overall workforce participation target)
• if you believe that your application is urgent and the reasons for this
• an outline of how your proposed exemption meets the criteria in the regulation. You should also address each of the six factors which the President must take into account when deciding whether to grant you an exemption. This will save time in processing your application. 

The six factors are:

• whether the proposed exemption is appropriate or reasonable
• whether the proposed exemption is necessary
• whether there are any non-discriminatory ways of achieving the objects or purposes for which the proposed exemption is sought
• 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
• the public, business, social or other community impact of the granting of the proposed exemption
• any conditions or limitations to be contained in the proposed exemption

c) Include supporting documents:

Include any supporting materials that will assist your application. Supporting material can help explain why you need the particular exemption. Some examples of supporting materials you could include are:

• position descriptions for roles you are proposing to designate
• workplace policies or initiatives that you have undertaken to promote and support workplace diversity (e.g. Reconciliation Action Plan or an employment diversity strategy)
• your organisation’s constitution or guiding document.
  

3. Send your application to us

Send your written application to us by email or post. Email is preferred.

Email: adbcontact@justice.nsw.gov.au

Post: Attention: The President, Anti-Discrimination NSW
Locked Bag 5000
Parramatta NSW 2124

When will I be notified of the decision?

Decisions are made within 60 days from the date the application is received, providing we have all of the relevant information required to make a decision. If your application is incomplete, we will ask you to provide further information so we can consider all relevant information when making a decision about your application. 

You will receive a letter to notify you of whether the exemption has been granted or refused. 

How do I apply for a certification?

1. Contact our enquiry service

We recommend that you call our enquiry service to discuss your situation and find out if you are covered by an exception or if you need to apply for an exemption or a certification.

2. Write your application

Include the following information in your application:

a) Tell us about your organisation

• information about your organisation and what your organisation does.
  

b) Tell us about what you plan to do and why you are applying for a certification

• the group of people  you are targeting for your program, activity or facility 
• outline of how the identified group experiences discrimination and has an established special need
• how your proposed service or program is seeking to promote equal access and address the identified discrimination or special need.
  

c) Provide any supporting documents

• Documents and/ or policies about your program.
  

You don’t need to specify a time limit for certifications; they can be for a specific period or for an indefinite period.

3. Send your application to the NSW Attorney General

Send your written application to the NSW Attorney General by email or post.

Email: adbcontact@justice.nsw.gov.au

Post: Attention: ADB exemptions officer
The Attorney General
Community Relations Division
GPO Box 5341
Sydney NSW 2001

When will I be notified of the decision?

Decisions are made within 60 days from the date the application is received, providing we have all of the relevant information required to make a decision. If your application is incomplete, we will ask you to provide further information so we can consider all relevant information when making a decision about your application. 

You will receive a letter to notify you of whether the exemption has been granted or refused.