Circular No 2006/1: Use of identified criteria and special measures to fill employment opportunities

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The 2005 State of the Service Report showed a continuing decline in the proportion of APS employees who identify as Aboriginal and/or Torres Strait Islander. As noted in the report, this is partly the result of a number of policy and operational decisions, but the outcome is that the public service is less able to draw upon a diverse and representative workforce.

2. In August 2005, the Prime Minister announced an APS Employment and Capability Strategy for Aboriginal and Torres Strait Islander Employees. While the Strategy introduces a number of new initiatives, there are also two existing avenues that agencies can use to target their recruitment activities:

Identified criteria help selection panels to choose the right person for the job – they are selection criteria that address the skills, knowledge and attributes required to perform the duties of the position.
Special Measures are available to assist individuals from a recognisable group to achieve employment outcomes – they allow positions to be advertised for filling only by Aboriginal and/or Torres Strait Islander applicants.

3. This circular outlines the difference between these options when used in APS recruitment exercises.

Identified Criteria

4. Identified criteria can be used to emphasise some of the skills, attributes or experience considered essential or desirable for the effective performance of the duties of a particular job. They are sometimes referred to as ‘criteria 1 and 2’.

5. They are not legislated. Their use is based on long-standing APS policy, and best practice in the careful consideration and determination of appropriate selection criteria for particular jobs. The key requirements of the criteria are:

an understanding of the issues affecting Aboriginal and/or Torres Strait Islander people; and
an ability to communicate sensitively and effectively with Aboriginal and/or Torres Strait Islander people.

6. Historically, these criteria have been mostly used for jobs which involve the development of policies or programmes targeted at Aboriginal and/or Torres Strait Islander clients, or which involve direct interaction with Aboriginal and/or Torres Strait Islander communities.

7. Identified criteria are consistent with the merit and reasonable opportunity values under the Public Service Act 1999 and do not raise issues of discrimination under the Racial Discrimination Act 1975, because the employment opportunities advertised in this way remain open to all eligible applicants: they are not restricted to Aboriginal and Torres Strait Islander applicants.

Special Measures Provisions

8. Special Measures provisions enable non-SES employment opportunities to be advertised as restricted to Aboriginal and/or Torres Strait Islander applicants.

9. The availability of Special Measures provisions to enable this targeted employment is authorised under section 8 of the Racial Discrimination Act 1975, which gives Australian legal recognition to Article 1, Paragraph 4 of the International Convention on the elimination of all forms of racial discrimination. The Convention forms a Schedule to the Act, and states that:

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

10. It is therefore not unlawful to limit certain employment opportunities to a particular ethnic or racial group, if that group has an identified history of disadvantage and the use of the limiting measure would help to redress the employment outcome imbalance.

11. APS Agencies are generally expected to advertise employment opportunities in the Gazette as open to all eligible members of the community, consistent with the APS Values of merit and reasonable opportunity to apply. However, the Public Service Commissioner’s Directions work with the provisions of the Racial Discrimination Act to enable agency heads to put in place special measures to identify particular opportunities as open only to Aboriginal and Torres Strait Islander applicants

12. It is important for agency heads to consider and record their justification for using the Special Measures provisions. Key factors justifying their legality include the inequitable employment outcomes experienced by Aboriginal and Torres Strait Islander people as a group, and the fact that this situation is not improving, and it cannot therefore be argued that the necessity for the special measures has been met.

13. It is also good practice for agencies to be explicit about the legal basis for the decision to restrict selection to Aboriginal and Torres Strait islander candidates. This could be done by noting in the advertisement and on selection documents that ‘the filling of this employment opportunity is intended to constitute a special measure under section 8(1) of the Racial Discrimination Act 1975’.

Next steps and further information

14. The Commission is currently assessing the effectiveness of these provisions through a detailed evaluation process and through the analysis of survey data forwarded by Aboriginal and Torres Strait Islander employees across the APS. The findings of these evaluations will be provided to agencies when available.

15. Further information on the matters raised in this circular is available from the APS Commission’s Employment Policy Adviceline—by phone on (02) 6202 3859 or e-mail employmentadvice@apsc.gov.au. It may be appropriate for more complex or sensitive queries to be dealt with in writing.

Clare Page
Group Manager
Better Practice Group

21 March 2006