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Identified positions and special measures for employing indigenous Australians

Identified positions

Identified positions are positions with specific selection criteria that signify that the role has a strong involvement in issues relating to Aboriginal and Torres Strait Islander people. Typically, these roles will 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.

Historically, two selection criteria have been used when advertising these positions. 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.

These 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

The Public Service Commissioner’s Directions 1999 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 (see Clauses 4.2(6)(b)(i) and 4.3(3)(b)(i) of the Commissioner’s Directions).

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. It can therefore be argued that the necessity for the use of special measures has been met.

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 advertising material and on selection documentation that ‘the filling of this employment opportunity is intended to constitute a special measure under subsection 8(1) of the Racial Discrimination Act 1975’.