Guidelines: special measures under the Sex Discrimination Act 1984 (Cth)
These guidelines provide practical guidance to organisations and individuals to encourage the implementation of special measures. They are intended to offer a means by which workplaces and education and service providers, as well as administrators of Commonwealth law and programs, can assess their own equity initiatives for consistency with the SDA.
These guidelines provide information on the relevant factors to consider when contemplating taking special measures under the SDA (Chapter 3) and provide examples to illustrate the types of special measures that can be implemented.
Chapter 4 sets out the practical steps that can be taken to make it clear that a measure is intended to be a special measure under the SDA.
These guidelines are issued under section 48(ga) of the SDA, which empowers the Commission to prepare and publish guidelines for the avoidance of discrimination on the grounds of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding, family responsibilities and discrimination involving sexual harassment.
The Commission does not have the power to certify special measures under the SDA and there is no certifying procedure available elsewhere.
This document is not legally binding and should be read in conjunction with the whole of the SDA. An organisation or individual will not be protected from a finding of unlawful discrimination if they claim that they conformed with, or relied on, these guidelines. The Commission considers however that, in the event of a complaint, the detailed documentation gathered in accordance with these guidelines would provide a strong basis for an employer to argue that their strategy is a special measure and therefore lawful and consistent with anti-discrimination law.
It is important to note that these guidelines are not intended to provide a definitive legal answer to the range of special measures permitted under the SDA. Organisations or individuals should seek their own independent legal advice if they have concerns regarding their compliance with the SDA or with relevant state or territory anti-discrimination legislation.
