6.2 Tasmania
Employers seeking to engage in targeted
Under the Anti-Discrimination Act 1998 (Tas)
exemption under the Tasmanian Act.39 This
(Tasmanian Act), exceptions, including the
provides protection against a complaint
special measures exceptions (sections 25
about any conduct that falls within the
and 26), must be proved on the balance of
scope of the exemption granted. In applying
recruitment in Tasmania may apply for an
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probabilities.
for an exemption, providing material that
While the Tasmanian Anti-Discrimination
Commissioner has some authority to
satisfies the requirements set out in Part 4
of this document is likely to be sufficient.
determine whether a special measure
The Tasmanian Anti-Discrimination
exception properly applies, the
Commissioner has published information on
Commissioner may not always have
how to apply for exemptions to the
authority to determine that sections 25 or
Tasmanian Act.40
26 apply to a complaint either at initial
assessment or after investigation.
It would therefore be at the inquiry by the
Tasmanian Civil and Administrative Tribunal
that an employer would have to prove that
the exception applied to its conduct and, as
a result, the conduct was not unlawful.
6.3 Other jurisdictions
As outlined in the Guidelines, under the
federal Disability Discrimination Act, and in
all other states or territories except NSW
(and noting the guidance regarding
Tasmania above), the granting of a statutory
However, if an exemption is granted for
exemption is not a legal prerequisite for
targeted recruitment, the Tasmanian Anti-
conducting a targeted recruitment strategy,
Discrimination Commissioner has express
as long as the recruitment program meets
authority to reject or dismiss a complaint
the requirements of a special measure.
about conduct that falls within the scope of
the exemption granted.38
This is because the purpose of a statutory
exemption is to exclude the application of
a particular law to certain conduct which
would otherwise breach that law. Special
measures are lawful and the statutory
exemption process is concerned with
potentially unlawful conduct.
Guidelines for the targeted recruitment of people with disability | 43