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7: Respecting the diversity of the Australian community in providing services

Agency heads have a range of policy and legislative responsibilities that are associated with how they relate to, and deliver services to, the general public.

7.1 The Charter of Public Service in a culturally diverse society

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The Charter of Public Service in a Culturally Diverse Society (the Charter) supports the Government’s commitment to implement its Access and Equity Strategy. The Charter was endorsed by Australian, state and territory governments and by the Australian Local Government Association in 1998, and represents a nationally consistent approach to the delivery of culturally responsive Government services.

The purpose of the Charter is to ensure that Government services meet the particular needs of people from diverse linguistic and cultural backgrounds so that they can participate fully in economic, social and cultural life.

The Charter requires Australian Government agencies to build cultural diversity considerations into:

  • strategic planning
  • policy development
  • budgeting and reporting processes of Government service delivery.

The Charter summarises seven principles central to the design, delivery, monitoring, evaluation and reporting of quality Government services in a culturally diverse society. These are:

  • access
  • equity
  • communication
  • responsiveness
  • effectiveness
  • efficiency
  • accountability.

Australian Government agencies are required to report annually to the Department of Immigration and Citizenship (DIAC) about their progress in implementing the Charter’s principles.

Agencies report against a performance management framework designed to comprehensively capture implementation of the Charter’s principles across four main roles of Government:

  • policy adviser
  • regulator
  • purchaser
  • provider.

Information on the employer role is collected by the Australian Public Service Commission and supplied to the DIAC.

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7.2 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 (PS Act).

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 PS 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 PS 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 Commissioner’s 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 Commissioner’s 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 Commissioner’s Directions).

Agency heads must establish a workplace diversity program (Section 18 of the PS 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 Commissioner’s Directions).

Under clause 3.4 of the Commissioner's Directions, 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 Commissioner’s 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 Commissioner’s 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 Commissioner’s Directions).

In addition, clause 2.13(1)(b) of the Commissioner’s 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
  • physical or mental disability.

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7.3 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.

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7.4 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 must be provided, in an accessible manner. Where information is not inherently accessible, efforts must be made to ensure non-discrimination (see the Australian Government  Information Management Office's Web Publishing Guide).  
  • Staff of Australian Government agencies should display non-discriminatory attitudes in the workplace (for example, harassment in employment in relation to a disability is unlawful. For the purposes of the Disability Discrimination Act the Commonwealth is taken to be the employer of all Commonwealth employees).
  • Where necessary, adjustments should be made to the workplace so that people with disabilities are not denied, on the basis of their disability, the opportunity to use and display their skills
  • Administration of all Commonwealth laws and programs 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 must 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.

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7.5 The Commonwealth Disability Strategy

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The Commonwealth Disability Strategy (the CDS) 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 agencies 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 agencies, 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 the development and implementation of the National Disability Strategy (NDS). The Australian Government is in the process of developing the NDS which will serve as an overarching policy statement setting the national view, direction and priorities to tackle the complex needs of people with disability and their families and carers. The CDS will perform a significant role as an integral element within the new NDS.

One significant change that has already taken place is the transfer of responsibility for the reporting requirements under the ‘employer role’ from the CDS to the Australian Public Service Commission (APSC). From 1 July 2007 agencies report on the Employer Role activities through the APSC's State of the Service agency survey and not just agencies' annual reports.

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7.6 Racial Discrimination Act

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In Australia, the Racial Discrimination Act 1975 (RD Act) makes it unlawful to discriminate against any person by reason of that person’s race, colour, descent, or national or ethnic origin, in a number of areas including access to places and facilities, the provision of goods and services, employment and advertisements.

Section 8 of the RD Act does not prohibit acts that are ‘special measures’. Generally, a special measure aims to advance the rights of a particular group to ensure that persons in that group can enjoy and exercise equally rights to the same extent as others in the community.

Under section 18, the RD Act prohibits offensive behaviour based on racial hatred, that is, racial vilification. Racial vilification covers acts that offend, insult, humiliate or intimidate a person or groups of people. The prohibition is subject to a number of exemptions intended to permit free debate on matters of legitimate public interest, thereby ensuring an appropriate balance between freedom of expression and the protection from racially offensive behaviour.

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7.7 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 a wide range of areas including in the following areas of public life:

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

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 as well as in administration of Commonwealth law and programs, provision of goods, services and facilities and other areas.

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

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7.8 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 a wide range of areas including in the following areas of public life:

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

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 a younger person can be expected to meet, and the fitness standard is not reasonable or an inherent requirement for the job in question.

In general terms, under the Act it is not unlawful to discriminate against a person in work 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 and territory laws and court orders
  • certain health programs, and
  • direct compliance with orders fixing minimum wages or industrial agreements and awards.

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7.9 Australian Human Rights Commission Act

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Complaints can be made under the Australian Human Rights 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, the Convention on the Rights of Persons with Disabilities 2008 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 Australian Human Rights 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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7.10 Same-sex relationships policy

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It is Government policy to eliminate discrimination against same-sex couples and their children in Commonwealth laws and programs. The Government amended 84 laws for this purpose in 2009. Government Departments and agencies are obliged to review their policies and subordinate legislation for consistency with this policy.