Utilising ‘special measures’ provisions in discrimination laws the key to increasing employment of Aboriginal and Torres Strait Islander peoples

According to the most recent statistics from the Australian Bureau of Statistics, Aboriginal and Torres Strait Islander people aged 15–64 years are around half as likely to be employed as non-Indigenous people. The Prime Minister’s Closing the Gap report for 2015 revealed that since 2008, no progress has been made in reducing the employment gap between Aboriginal and Torres Strait Islander peoples and non-Indigenous people – in fact the gap has widened. 

Employers are increasingly seeking to address the discrimination Aboriginal and Torres Strait Islander people face in securing work opportunities by conducting targeted recruitment strategies, such as reserving certain positions for Aboriginal and Torres Strait Islander applicants.

There is unfortunately some misunderstanding amongst employers that discrimination laws are an obstacle for those wishing to undertake such recruitment strategies for the benefit of Aboriginal and Torres Strait Islander people. Some employers are concerned that implementing such strategies may breach these laws, and therefore believe that they need to apply for exemptions in order to conduct targeted recruitment.

However, in all jurisdictions other than New South Wales, this is not the case. Laws which prohibit racial discrimination in Australia recognise that some racial groups have suffered historical disadvantage and do not have equal access to opportunities to others in the community. These laws permit employers to take positive actions to address the inequality experienced by Aboriginal and Torres Strait Islander people in employment.

The various discrimination laws give these types of positive actions different labels: they are referred to as ‘special measures’ in the Racial Discrimination Act 1975 (Cth) (RDA), the Northern Territory and Victorian laws; ‘measures intended to achieve equality’ in the ACT and Western Australian laws; ‘projects for benefit of persons of a particular race’ in the South Australian law; ‘equal opportunity measures’ in the Queensland law, and either ‘schemes for the benefit of disadvantaged groups’ or a ‘program, plan or arrangement designed to promote equal opportunity’ in the Tasmanian law.

Due to a lack of awareness or understanding,  the ‘special measure’ provisions in these discrimination laws appear to be underutilised, and therefore are not fulfilling their function of advancing the right of disadvantaged groups to substantive equality. For example, one of the objectives of the Victorian Equal Opportunity Act 2010 (which contains a special measures provision in s 12) is to promote and facilitate the progressive realisation of equality, as far as reasonably practicable, by recognising that—

  • discrimination can cause social and economic disadvantage and that access to opportunities is not equitably distributed throughout society;
  • equal application of a rule to different groups can have unequal results or outcomes;
  • the achievement of substantive equality may require…the taking of special measures.

To help employers use the ‘special measure’ provisions in the RDA and state and territory discrimination laws to target Aboriginal and Torres Strait Islander people for recruitment, the Australian Human Rights Commission has developed Targeted recruitment of Aboriginal and Torres Strait Islander people: A guideline for employers (available online at  https://www.humanrights.gov.au/targetedrecruitment). The guideline has been endorsed by all the state and territory discrimination authorities.

As the guideline explains, the core elements of a ‘special measure’ are essentially the same under the RDA and state and territory discrimination laws. To effectively meet the test for a ‘special measure’ in all jurisdictions an employer must be able to show that a targeted recruitment strategy:

  • is necessary because members of a racial group are disadvantaged because of their race
  • will promote equal opportunity for members of that racial group
  • has the sole purpose of promoting equal opportunity (and will be done in good faith)
  • is reasonable and proportionate (including reasonably likely, appropriate and adapted to achieve its purpose), and
  • will stop once its purpose has been achieved.

As long as a targeted recruitment strategy for Aboriginal and Torres Strait Islander peoples meets the requirements of a ‘special measure’, it is lawful under racial discrimination laws, except in New South Wales. As the Anti-Discrimination Act 1977 (NSW) does not include a clear ‘special measures’ type provision, in NSW employers need to apply for an exemption from that Act to conduct targeted recruitment.

Sarah Dillon is Policy Officer at the Australian Human Rights Commission.