Executive Summary

An Indigenous Engagement Survey conducted by the Business Council of Australia (BCA) in 2014 revealed that almost 70 per cent of respondent companies had Indigenous employment strategies and most respondents also indicated they planned to recruit Indigenous employees in 2015.

Implementing targeted recruitment strategies that address the discrimination Aboriginal and Torres Strait Islander people face in securing work opportunities is key to increasing their positive employment outcomes.

However, some employers have raised concerns that by conducting a targeted recruitment strategy for Aboriginal and Torres Strait Islander people they risk breaching discrimination laws. Many employers believe that they need to apply for an exemption from such laws before undertaking these programs. However, other than in New South Wales, this is not the case.

This guideline explains how targeted recruitment strategies for Aboriginal and Torres Strait Islander people can be consistent with discrimination laws. This is because discrimination laws (other than in NSW) permit ‘special measures’ which promote equal opportunity for disadvantaged groups. The unique situation in NSW is explained in section 4 of this guideline.

‘Special measure’ provisions in discrimination laws allow employers to implement such strategies for the benefit of Aboriginal and Torres Strait Islander people without breaching prohibitions on racial discrimination.

Provided a targeted recruitment strategy meets the requirements of a special measure set out in section 2 of this guideline, it is lawful under discrimination law (except in NSW, where an employer is required to seek an exemption).

The Australian Human Rights Commission (the Commission) has prepared this guideline, in the exercise of the Commission’s function under s 20(d) of the Racial Discrimination Act 1975 (Cth).^[2] It has been prepared in consultation with the state and territory discrimination/equal opportunity authorities, to assist employers seeking to implement targeted recruitment strategies to increase the representation of Aboriginal and Torres Strait Islander people in the workforce.

This document provides guidance to employers on designing and documenting these targeted recruitment strategies to meet the requirements of a ‘special measure’ in all Australian jurisdictions. The guideline is intended to apply nationally, to assist employers who want to conduct targeted employment in multiple states and/or territories. It also includes advice on practical steps employers can take to implement a targeted recruitment strategy as a ‘special measure’.

It is based on the extensive experience and expertise of the Commission and state and territory discrimination/equal opportunity authorities in the administration of discrimination laws, and is intended to provide guidance on how those laws operate.

Whilst this guideline is not legally binding, in the view of the Commission and the state and territory discrimination/equal opportunity authorities, employers who can demonstrate that their targeted recruitment strategy for Aboriginal and Torres Strait Islander people meets the requirements set out in this guideline can have confidence that it is compatible with discrimination law (other than in NSW).

In the event of a complaint, the detailed documentation gathered in accordance with this guideline would provide a strong basis for an employer to establish that their strategy is a special measure and therefore consistent with discrimination law.

This guideline has been endorsed by:

• ACT Human Rights Commission
• Anti-Discrimination Board of NSW
• Northern Territory Anti-Discrimination Commission
• Anti-Discrimination Commission Queensland
• Equal Opportunity Commission of South Australia
• Office of the Anti-Discrimination Commissioner of Tasmania
• Victorian Equal Opportunity and Human Rights Commission
• Equal Opportunity Commission of Western Australia.

Finally, please note that this guideline is designed to address the requirements under Australian law for the specific ‘special measure’ of targeted recruitment of Aboriginal and Torres Strait Islander people. It is not intended as guidance on special measures generally – for broader guidance on special measures, including applicable principles of international human rights law, please see Guidelines to understanding ‘Special measures’ in the Racial Discrimination Act 1975 (Cth).^[3]

Notes

[2] Section 20(d) of the Racial Discrimination Act 1975 (Cth) provides for the Commission to prepare, and to publish in such manner as the Commission considers appropriate, guidelines for the avoidance of infringements of the operative provisions of the Act.

[3] Available at https://www.humanrights.gov.au/publications/guidelines-understanding-special-measures-racial-discrimination-act-1975-cth-2011 (viewed 15 July 2015).