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Last updated: August 2008

Respecting the diversity of the Australian community in providing services

Legislative framework

Public Service Act

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Agency heads must uphold and promote a workplace that is free from discrimination (section 10(1)(c) of the Public Service Act 1999.

An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment (section 13(3) of the Public Service Act).

Agency heads may impose sanctions, including termination of employment, where an employee is found to have breached the Code of Conduct (section 15(1) of the Public Service Act).

Agency heads must put in place measures directed at ensuring that employment and workplace arrangements take appropriate account of employees who are seeking to balance individual needs and the achievement of organisational goals (clause 2.11(1) of the Public Service Commissioner's Directions 1999 (the Directions).

Agency heads must put in place measures to:

• help prevent all forms of direct and indirect discrimination consistently with Commonwealth law
• recognise the positive advantages of, and help make best use of , the diversity available in the workplace (clause 3.2(1) of the Directions.

Agency heads must assist employees balance their work, family and other caring responsibilities through mutually beneficial work practices. (see clause 3.2(2) of the Directions).

Agency heads must establish a workplace diversity program (Section 18 of the Public Service Act). It must include measures to ensure:

• the agency's corporate, business and human resource plans demonstrate that it values the diverse backgrounds of its employees and values, and is able to access and make use of, the diverse skills and experience of its employees
• workplace structures, systems and procedures assist employees to balance their work, family and other caring responsibilities
• engagement decisions take into account the diversity of the community as well as the goals of the agency and skills required
• equity in employment is promoted and upheld, through transparent and fair employment decisions and eliminating any employment-related disadvantage on the basis of being an Indigenous Australian, gender, race or ethnicity or disability (see clause 3.3 of the Directions).

Under clause 3.4 of the Public Service Commissioner's Directions 1999, APS agency heads must provide a copy of their agency's workplace diversity program (including revisions to the program) to the Commissioner.

Agency heads must develop performance indicators for their workplace diversity programs and evaluate and report on the effectiveness and outcomes of the program annually (see clause 3.5(1) of the Directions).

Agency heads must give the Commissioner information required to enable an assessment of the effectiveness of agencies' workplace diversity programs for the State of the Service Report (see clause 3.5(2) of the Directions).

Agency heads must review the agency's workplace diversity program every 4 years to make sure that is continues to give effect to the APS Values and achieve the outcomes mentioned in clause 3.3 (see above and clause 3.6 of the Directions).

In addition, clause 2.13(1)(b) of the Directions requires agency heads to put measures in place to eliminate any employment-related disadvantage in the agency on the basis of:

• being an Aboriginal or Torres Strait Islander
• gender
• race or ethnicity
  or
• physical or mental disability.

Service charters

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A service charter is a public document that sets out the standards of service customers can expect from an organisation. It is Government policy that all agencies that deliver services to the public have a service charter in place. Agencies with policy development functions are also encouraged to develop service charters.

Client service charter principles include a focus on the needs of:

• clients in rural, remote and regional Australia
• people with disabilities
• those who speak a language other than English.

A service charter is a strong performance measurement and accountability tool because it focuses on customer service outcomes. Charters should be developed in consultation with staff and customers and grow and change as the agency changes.

Agencies should report against the commitments in their service charters each year in their annual report.

Disability Discrimination Act

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The Commonwealth Disability Discrimination Act 1992 makes discrimination on the basis of disability unlawful. In essence, disability discrimination happens when people with a disability are treated less fairly than people without a disability. Disability discrimination also occurs when people are treated less fairly because they are relatives, friends, carers, co-workers or associates of a person with a disability. Indirect discrimination occurs when there is a requirement or condition or practice that is the same for everyone but has an unfair effect on a particular group of people.

In relation to an agency head’s responsibilities, this means:

• People with disabilities should have access to all parts of buildings utilised by the Australian Government in the same way as people without a disability.
• All publicly available Australian Government information should be able to be provided, upon request, in formats accessible to people with a range of disabilities (see the Australian Government Management Information Office's Guide to Minimum Web Site Standards).
• Staff of Australian Government agencies should display non-discriminatory attitudes in the workplace.
• Where necessary, adjustments should be made to the workplace so that people with disabilities have equal opportunity to use and display their skills
• Administration of all Commonwealth laws and programmes should be consistent with the Act.

The Act states that in some circumstances it may be lawful for a person to discriminate against a person with a disability. For example, if a person cannot perform the inherent requirements of a job, it may be lawful for an employer not to employ the person or to dismiss the person. However, the employer should consider whether the person could perform the requirements of the job with ‘reasonable adjustment’ for the disability. For example, could a person with a vision impairment perform a clerical job with voice activated software? If it would impose an ‘unjustifiable hardship’ on the employer to provide the reasonable adjustment, it may not be unlawful discrimination to refuse to make the adjustment.

The Commonwealth Disability Strategy

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The Commonwealth Disability Strategy operates within the (Commonwealth) Disability Discrimination Act 1992 legislative framework and is designed to eliminate discrimination on the grounds of disability and to ensure and promote the principle that people with disability have the same fundamental rights as the rest of the community. Under the strategy, Australian Government organisations are obliged to remove barriers that may prevent people with disability from accessing their policies, programs and services.

The CDS includes a reporting framework built around five key roles performed by Australian Government organisations; policy adviser, regulator, purchaser, provider and employer.  The framework requires all Australian Government organisations, with the exception of Government Business Enterprises, to provide data on their performance against the CDS roles in their respective annual reports. 

The Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) is the lead agency for the CDS with responsibility for implementing changes to the Strategy in response to an evaluation report released in November 2006, and to align it with post 2007 election machinery of government changes.

Reporting by individual agencies against the ‘employer role’ has been removed from the CDS and from 2007-08 agencies will only report on these activities through the APS Commission’s Agency Survey for the annual State of the Service report (SoS).  Previously, agencies provided performance information relating to the employment of people with disability in both their annual reports under the CDS and in Agency Surveys for the SoS report.  This change will remove duplication in Government reporting, addressing one of the recommendations in the Department of Finance and Deregulation’s internal paper, Report on Red Tape in Internal Australian Government Administration.

Racial Discrimination Act

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The Racial Discrimination Act 1975 prohibits discrimination on the basis of race, colour, descent or national or ethnic origin. No one, including an agency head or an APS agency, is entitled to discriminate on racial grounds if that discrimination means that a person’s human rights are affected.

‘Special measures’ are not unlawful. In general terms, ‘special measures’ are programmes with the objective of securing the adequate advancement of a group, or individual members, affected by historic disadvantage to help them enjoy and exercise their human rights in full equality.

The Racial Hatred Act 1995 amended the Act by making offensive behaviour based on race unlawful. Prohibited behaviour may include offending, insulting, humiliating or intimidating another person because of his or her race, colour, national or ethnic origin.

In general terms, the Act is concerned with equality before the law and can render ineffective Commonwealth, state or territory law that does not comply with this principle.

Sex Discrimination Act

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Under the Sex Discrimination Act 1984, it is unlawful to discriminate against a person on the ground of the person’s sex, marital status, pregnancy or potential pregnancy in the following areas of public life:

• buying or selling land
• administration of Commonwealth laws and programs
• education
• employment
• superannuation
• accommodation and housing
• provision of goods, services or facilities.

requests for information on which sex discrimination might be based.It is also unlawful for an employer to discriminate against an employee on the ground of the employee’s family responsibilities by dismissing the employee.

The Act further provides that it is unlawful to sexually harass a person. The Act identifies sexual harassment as unwelcome sexual conduct which makes a person feel offended, humiliated and/or intimidated where that reaction is reasonable in the circumstances. It can involve unwelcome touching, hugging or kissing, suggestive comments or jokes, unwanted invitations to go out on dates or requests for sex, insults based on sex or sexually explicit emails or text messages. The Act prohibits sexual harassment in almost every employment situation.

An employer may be held legally responsible for acts of sexual harassment committed by employees unless the employer has taken all reasonable steps to prevent the sexual harassment from taking place.

Age Discrimination Act

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The Age Discrimination Act 2004 makes it unlawful to discriminate against someone on the ground of age in respect of the following:

• employment and related matters
• education
• access to premises
• provision of goods, services and facilities
• provision of accommodation
• disposal of land
• administration of Commonwealth laws and programmes
• requests for information on which age discrimination might be based.

Under the Act, it is unlawful to engage in direct or indirect age discrimination.

Direct age discrimination occurs if, because of a person’s age, the discriminator treats the aggrieved person less favourably than he or she would treat a person of a different age. An example of direct age discrimination may be where an older person is not employed because it is assumed that an older person would not have adequate computer skills.

Indirect discrimination occurs if a person of a particular age is disadvantaged because the person cannot meet a condition, requirement or practice, that is neutral as to age on its face, but is more difficult for people of that age to meet than people of another age. However, if such a condition is reasonable in the circumstances, it will not be unlawful discrimination. An example of indirect age discrimination may include where an employer requires an older person to meet a physical fitness test which more young people can be expected to meet, if the fitness standard is not reasonable for the job in question.

In general terms, under the Act it is not unlawful to discriminate against a person because of the person’s age if the person cannot perform the inherent requirements of a job. Further, it is generally not unlawful to provide bona fide benefits to persons of a particular age (for example, discounts to holders of a Seniors Card), or to commit an act that was intended to meet a need that arises from the age of a particular group (for example, young people may have a greater need for welfare services), or to reduce a disadvantage experienced by people of a particular age (for example, older people are often more disadvantaged by retrenchment than are other people).

The Act also provides certain exemptions to which the AD Act does not generally apply including:

• Commonwealth laws that govern taxation, social security, migration and superannuation
• state laws
• certain health programmes
• direct compliance with orders fixing minimum wages or industrial agreements and awards.

Human Rights and Equal Opportunity Commission Act

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Complaints can be made under the Human Rights and Equal Opportunity Commission Act 1986 about alleged breaches of human rights by or on behalf of the Australian Government. Human rights are defined in the Act by reference to international human rights treaties and declarations, including the International Covenant on Civil and Political Rights 1966 and the International Labour Organisation, Discrimination (Employment and Occupation) Convention 1958.

Complaints may also be made under the Act about impairment of equal opportunity in employment on a number of grounds defined in the Act (see section 3(1) of the Act) and the regulations (see regulation 4 of the Human Rights and Equal Opportunity Commission Regulations) which include race, colour, sex, religion, political opinion, national extraction, social origin, age, medical record, criminal record, impairment, marital status, mental intellectual or psychiatric disability, sexual preference, trade union activity or in some cases on the basis of the imputation to a person of a particular ground. In general terms, however, discrimination does not occur when a particular attribute is an inherent requirement of the job.

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