Circular 2010/4: Revision of Special Measures and Identified Positions/Criteria provisions

Last updated: 02 Jul 2013

This page is: archived

The purpose of Circular 2010/4 is to provide APS agencies with updated information originally published in Circular 2006/1 about the:

  • Special Measures provision for recruiting Indigenous staff; and
  • Identified Positions/Criteria provision for recruiting staff with specialist knowledge and understanding for roles with a strong involvement in work relating to Indigenous Australians and/or communities.

This Circular is effective from 17/08/2010.

Circular 2006/1 containing the original advice regarding the Special Measures and Identified Positions/Criteria has now been archived.

Background

The Commission’s Circular 2006/1: Use of identified criteria and special measures to fill employment opportunities was published after the launch of the APS Employment and Capability Strategy for Aboriginal and Torres Strait Islander Employees in 2005.  The purpose of the Circular was to remind human resources (HR) practitioners of two existing avenues that agencies could use to target their recruitment activities, i.e. the Special Measures and Identified Positions/Criteria provisions.  The former is also referred to in the Public Service Commissioner’s Directions 1999 at 4.2 (6)(b)(i) and 4.3(3)(b)(i), as well as the Racial Discrimination Act 1975 Section 8(1).

Scope of the review

At the time of the publication of Circular 2006/1, the Commission undertook to assess the effectiveness of these provisions.  It found that they were not applied frequently because of perceived ambiguities about their use.

HR practitioners from a number of agencies worked with the Commission to clarify the application of the two provisions and the distinction between them.

The attachments to this Circular outline the application of and difference between the Special Measures and Identified Positions/Criteria provisions when used in APS recruitment processes.

Sherryn Bellis
Acting Group Manager
Workforce Participation Group
16 August 2010

Special Measures provisions for the employment of Indigenous Australian in the Australian Public Service1

The Special Measures provision allows for the targeted recruitment of Indigenous Australians into the Australian Public Service (APS) while adhering to the employment principles set out in the Public Service Act 1999.  The purpose of employing staff under the Special Measures provision is to improve employment outcomes for Indigenous Australians, and to ensure that the diversity of the APS workforce reflects that of the Australian community.

Although the term Special Measures has been in use since 1975, there has been some confusion about its meaning and application.  The confusion has been compounded by the fact that state and territory jurisdictions tend not to use this description for positions that are reserved for Indigenous Australians.  It is important that APS agencies continue to use the term Special Measures in their job advertisements and selection criteria.  APS agencies that have a presence in and advertise for staff in the states and territories need to make it quite clear in all their documentation that Special Measures positions are open only to Indigenous Australians. 

The Special Measures provision is commonly used with Indigenous-specific recruitment programs, e.g. the Indigenous Cadetship Program offered by the Australian Public Service Commission.  Special Measures can also be applied as part of an agency’s Indigenous employment strategy, i.e. for increasing the number of Indigenous staff in its general workforce. 

The following table sets out the legislative basis and considerations to be taken into account by APS agencies when using the Special Measures provision.

For further information, please contact the Australian Public Service Commission’s Employment Policy Adviceline at employmentadvice@apsc.gov.au.

1 Note that the Special Measures provision can also be applied to employ people with intellectual disability.  See Section 4.2(6)(b)(ii) Public Service Commissioner’s Directions 1999.

APPLYING THE SPECIAL MEASURES PROVISION TO EMPLOY INDIGENOUS AUSTRALIANS IN THE APS

What is the legislative basis?

Racial Discrimination Act 1975 Section 8(1)
Public Service Commissioner’s Directions 1999 Sections 4.2(6)(b)(i); 4.3(3)(b)(i); 4.6A(7)(b)(i) and (c); and 6.3(1)(b)

Should a record of the justification for recruiting under the Special Measures provision be made?

Yes.  Recruiting under Special Measures should be documented as an employment strategy to increase Indigenous representation in the APS, and address inequitable employment outcomes experienced by Indigenous Australians. 

Can Special Measures be used even though the duties do not require working with Indigenous Australians and/or working on Indigenous issues (e.g. policy)?

Yes. Application of the Special Measures provision is a strategy to employ more Indigenous Australians.  However, if an understanding of Indigenous issues is required, then Identified Criteria should also be used in the recruitment process.

Should the position be advertised in the Gazette?

Yes.  All vacancies have to be advertised in the Gazette.

Are Special Measures positions restricted to Indigenous Australian applicants?

Yes.

Is proof of Indigenous heritage required?

Yes.  Agencies should be satisfied that applicants under the Special Measures provision meet three criteria, i.e. that they:

  • are of Aboriginal and/or Torres Strait Islander descent;
  • identify as Aboriginal and/or Torres Strait Islander; and
  • are accepted by their community as being Aboriginal and/or Torres Strait Islander. 

Can Special Measures be applied to APS 1 – EL 2 classifications?

Yes. Special Measures can be applied for ongoing engagements, promotions or engagements for a specific term or specified task, i.e. non-ongoing engagements.

Can Special Measures be applied to SES classifications?

Yes, with the Public Service Commissioner’s permission prior to advertising, under section 6.3(1)(b) of the Public Service Commissioner’s Directions 1999, and to fill vacancies as described above.

Is the location of the position relevant?

No.

Are labour market factors relevant?

No.

Is the socio-economic status of applicants relevant?

No.

Do selection criteria have to be worded in a particular way?

Yes and no.  They should state that the position is open only to Indigenous applicants.  No other special selection criteria need to be included unless it is also an Identified Position.

Are there requirements when advertising positions under the Special Measures provision in the media/Gazette?

Yes.  Although it is not a legal requirement, agencies should be explicit about the basis for the decision to restrict selection to Indigenous Australians to minimise the risk of complaints that recruitment under Special Measures is discriminatory.  All advertisements and selection documentation for Special Measures position(s) should state that the filling of the position(s) is intended to constitute a Special Measure under section 8(1) of the Racial Discrimination Act 1975.

Does the APS merit process apply?

Yes.  Applicants must demonstrate their relative suitability for the position, and the usual competitive merit selection process should be followed.

Can Special Measures for employing Indigenous staff be used for other employment conditions, e.g. gender-specific requirements?

No.  Additional employment conditions cannot be accommodated as part of the Special Measures provision.

IDENTIFIED POSITIONS/CRITERIA

Many Australian Public Service (APS) agencies have work areas where all or most of the tasks involve the development and/or delivery of policies, programs and services that impact on Indigenous Australians and/or require interaction with Indigenous communities or their representatives.

It has been long-standing APS policy to regard roles with a strong involvement in issues relating to Indigenous Australians as Identified Positions.  Two particular selection criteria are used when advertising such positions, developing selection documentation for them, and assessing applicants for Identified Positions (see the table below).  These criteria, referred to as Identified Criteria, emphasise some of the skills, attributes and experience considered essential or desirable for the effective performance of the duties of such a job.

Although the terms Identified Positions and Identified Criteria have been around for a long time, there is some confusion about their meaning and application.  This confusion has been compounded by the fact that the majority of state and territory jurisdictions also use these terms but define and apply them differently from the way the APS does.  Both definition and application may also vary between jurisdictions.

The following table is a summary of the aims to clarify the nature of Identified Positions/ Criteria and sets out what considerations should be taken into account by APS agencies when applying the Identified Positions/Criteria provision. 

For further information, please contact the Australian Public Service Commission’s Employment Policy Adviceline at employmentadvice@apsc.gov.au.

APPLYING THE IDENTIFIED POSITIONS/CRITERIA PROVISION

What is the legislative basis?

The application of the Identified Positions provision has no legislative basis, but it meets the merit requirements under the Public Service Act 1999. It is a long-standing APS policy and best practice in determining appropriate selection criteria for particular jobs.

Should a record of the justification for recruiting under the Identified Positions provision be made?

Yes.  It is good practice to document the inherent requirements of all positions.

When some or all of the duties include working with Indigenous Australians and/or working on Indigenous topics (e.g. policy), should Identified Positions/ Criteria be used?

Yes.  Agencies are encouraged to use Identified Positions/Criteria to recruit or promote suitably experienced and qualified staff (see the Identified Criteria below).
Note: the impact of any (i.e. not just Indigenous-specific) Government policies/programs on Indigenous Australians should always be considered.

Should the position be notified in the Gazette?

Yes.  All vacancies have to be advertised in the Gazette.

Are Identified Positions open to all members of the community?

Yes.  Recruiting for Identified Positions does not restrict the field to Indigenous Australians, nor does it preclude them. 

Is proof of Indigenous heritage required?

No.

To which classifications can Identified Positions be applied?

All/any.

Is the location of the position relevant?

No.

Are labour market factors relevant?

No.

Is the socio-economic status of applicants relevant?

No.

Should selection criteria be worded in a particular way?

Yes.  Identified Positions should include two selection criteria designed to attract applicants with the appropriate skills, attributes and experience that enable them to work effectively and sensitively on Indigenous issues and/or with Indigenous Australians. There is no set wording for these criteria; however, the key requirements should be:

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

These are sometimes referred to as criteria 1 and 2.

Are there special requirements when advertising Identified Positions in the media/ Gazette?

Yes and no. Although there are no legal requirements, advertisements should clearly specify when a job is an Identified Position.  As for all job advertisements, it is advisable to include a statement like “Aboriginal and/or Torres Strait Islander people are encouraged to apply.”

Should the selection process include particular considerations?

Yes.  The usual competitive merit selection process must be followed, and members of the selection panel must be competent to assess applicants against the Identified Criteria.

  • An Indigenous Australian should be on the selection panel.  
  • Applicants should be asked to provide a reference from an Indigenous Australian to confirm they have relevant experience and meet the Identified Criteria.  

Can Identified Criteria be used for other employment conditions, e.g. gender-specific requirements?

No.  Additional employment conditions cannot be accommodated as part of the Identified Positions provision.