Frequently asked questions

What is the difference between an exemption and certification?

An exemption is granted by the President under section 126 of the Anti-Discrimination Act 1977 (NSW). An exemption allows conduct that would otherwise breach the Act, for example, recruiting women into 'non-traditional' roles, such as bus drivers, construction workers or in Science, Technology, Engineering, Mathematics and Medicine (STEMM) in academia. 

Certification is granted by the NSW Attorney General under section 126A of the Act. A certification applies to a program or activity for a group experiencing discrimination that either:

• Improves access to facilities, services or opportunities to meet their special needs; or
• Promotes equal or improved access for them to facilities, services or opportunities.

For example, to provide counselling and support services to men only.

What are some 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 are some 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.

Do I need an exemption or certification for the activity that I am undertaking?

You may need an exemption or certification if you want to carry out an activity that would breach the Anti-Discrimination Act 1977 (NSW), such as specifying that a job or service is only open to people based on their:

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

Before applying, you should check whether an exception applies to your circumstances. 

Is there an exception in the Anti-Discrimination Act 1977 (NSW) that covers my proposed activity?

The Anti-Discrimination Act 1977 (NSW) sets out exceptions where discrimination is allowed.

Some common exceptions are in:

• Section 14  – this allows you to employ someone of a particular race where being that race is a ‘genuine occupational qualification’, for example, casting someone for a film for reasons of authenticity or providing welfare services to people where those services can most effectively be provided by people of the same race 
• Section 21 – this allows you to provide special needs programs for people of a particular race, for example, an Aboriginal student assistance program
• Section 31 – this allows you to employ a person of a particular sex where it is a ‘genuine occupational qualification’, for example, where the job involves searching people of a particular sex or entering change rooms
• Section 49ZYR - this allows you to provide special needs programs for people of a particular age or age group.

You don’t need an exemption to target jobs or services for people with a disability, however, you may need an exemption to target people with a specific type of disability, for example, intellectual disability.

Anti-Discrimination NSW can provide information about exceptions in the Act but cannot provide legal advice about whether your activity is covered. 

How long will it take to process my application?

It can take up to 60 days to process your application once Anti-Discrimination NSW has all the relevant information. 

If there is a reason why your application is urgent, please advise us. 

What should I include in my exemption application?

The online exemption form will prompt you for the required information, however you may wish to review the list below to check that you have everything you need:

• A short explanation of why you need the exemption
• Supporting documents or reasons, including information about your organisation and what your organisation does, any information about workforce participation rates, recruitment and retention of the target group, how the position fits within your organisational structure and why the position would benefit the group you are targeting
• Any other policies or initiatives you have undertaken or implemented to address discrimination (including a Reconciliation Action Plan and/or Diversity and Inclusion Strategy) and how your proposed exemption corresponds to these
• The sections of the Anti-Discrimination Act 1977 (NSW) that you want an exemption from. Commonly used sections are:

Ground	Area	Section
​Race ​	​Employment	8
	Contract workers	10
	Education	17
​Sex ​	Employment	25
	Contract workers	27
	Education	31A
	Services	33
Age	​Employment	49ZYB
	Contract workers	49ZYD
Disability	Employment	49D
	Contract workers	49F
	Services	49M

 

If you are unsure about which sections apply, we can advise you about this.

• 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)
• An outline of how your proposed exemption meets the criteria in the regulation. You should also address each of the factors which the President must consider when deciding whether to grant you an exemption. The factors are:
  • Is the exemption appropriate and reasonable?
  • Is the exemption necessary? An exemption may not be necessary if an exception applies or if the action would not breach the Anti-Discrimination Act 1977 (NSW). 
  • Are there ways of achieving the desired outcome in a non-discriminatory way?
  • Have you taken reasonable steps to avoid or reduce any adverse impacts of the exemption? 
  • What is the public, business, social or other community impact of the exemption?
  • Should any conditions or limitations apply? Occasionally, Anti-Discrimination NSW may require you to report on the progress of your exemption. 

What should I include in my certification application?

• Information about your organisation and what it does
• Tell us about what you plan to do and why you are applying for a certification
• Identify the group experiencing discrimination and explain how your program or activity will either:
  • Improve access to facilities, services or opportunities to meet their special needs; or
  • Promote equal or improved access for them to facilities, services or opportunities
• Provide any supporting documents, for example, policies about your program
• Certifications can be for a specific period or for an indefinite period. Please let us know how long you would like the certification for and why.

Please send your completed certification application to adbcontact@justice.nsw.gov.au.

Does an exemption granted under the Anti-Discrimination Act 1977 (NSW) cover activity in other states and territories?

No. Please contact the relevant state, territory or federal human rights and anti-discrimination agency for more information. 

Is my activity covered under the Government Sector Employment Act 2013 (NSW)?

Government sector agencies can conduct some targeted recruitment of vulnerable groups under the Government Sector Employment Act 2013 (NSW) and Rules. Find more information from the Office of the Public Service Commissioner.