1. Application of discrimination laws
Discrimination laws in all Australian jurisdictions prohibit discrimination on the basis of race, including in connection with employment. An employer is required to comply with both the federal Racial Discrimination Act and the relevant discrimination law which applies in the states and/or territories in which it operates.
All of these laws contain exceptions to the general rule that people must be given the same opportunities regardless of their race. There are two types of exceptions which can apply in the case of targeted recruitment of Aboriginal and Torres Strait Islander people: ‘special measure’ provisions and ‘genuine occupational requirement’ provisions.
LAWS WHICH PROHIBIT RACIAL DISCRIMINATION
Law by jurisdiction
Exception for ‘special measures’ which includes recruitment?
Exception for genuine occupational requirements?
Cth - Racial Discrimination Act 1975
Yes – s 8
ACT - Discrimination Act 1991
Yes – s 27
Yes – s 42
NSW - Anti-Discrimination Act 1977
Yes – s 14
NT - Anti-Discrimination Act 1996
Yes – s 57
Yes – sub-s 35(1)(b)(ii)
Qld - Anti-Discrimination Act 1991
Yes – s 105
Yes – s 25
SA - Equal Opportunity Act 1984
Yes – s 65
Yes – sub-s 56(2)
Tas- Anti-Discrimination Act 1998
Yes – ss 25 & 26
Yes – s 41
Vic - Equal Opportunity Act 2010
Yes – s 12
Yes – sub-s 26(3) and s 28
WA- Equal Opportunity Act 1984
Yes – s 51
Yes – s 50
A special measure is an action taken to address disadvantage experienced by a particular racial group, so that members of that group may enjoy their rights equally with other groups. Special measures support groups of people who face, or have faced, entrenched discrimination so they can have similar access to opportunities as others in the community.
An example of a special measure is a program which targets Aboriginal and Torres Strait Islander people for employment opportunities to redress their under-representation in a workplace.
All discrimination laws which prohibit racial discrimination, with the single exception of the NSW Act, have provisions which make clear that positive action to assist historically disadvantaged racial groups will not be considered unlawful discrimination. The language used in the laws to describe such positive actions differs between the jurisdictions (i.e. sometimes they are called ‘equal opportunity measures’), but for the purposes of this guideline they will be referred to generally as ‘special measures’.
Discrimination law recognises that ‘equality’ does not always mean identical treatment. In order to achieve genuine, ‘substantive’, equality, it may be necessary to treat people differently in order to address existing inequality or disadvantage. Although special measures necessarily involve treating different racial groups differently, this differential treatment is not against the law if it meets certain criteria.
This means that if an action taken to ameliorate the disadvantage experienced by a particular racial group meets the requirements of a special measure, it is not unlawful discrimination. It is therefore unnecessary for an employer to apply for an exemption from discrimination law to take such action, unless they are operating in New South Wales.
As is explained in section 4 of this guideline, there is no relevant special measures provision under the Anti-Discrimination Act 1977 (NSW). It is therefore necessary for employers wanting to conduct targeted recruitment for Aboriginal and Torres Strait Islander people in New South Wales to apply for an exemption from that Act.
In Tasmania, the Anti-Discrimination Commissioner encourages employers to seek an exemption for a targeted recruitment strategy even if it meets the requirements of a special measure. This is discussed further in section 5 of this guideline.
State and territory discrimination laws also contain separate provisions which apply if being of a particular race is a genuine occupational qualification or requirement for a particular job.
This may include roles which involve developing or implementing policies, programs or services targeting Aboriginal and Torres Strait Islander service users, or liaising with Aboriginal and Torres Strait Islander communities. For example, a company may create the position of an Aboriginal Liaison Officer to provide support and information to Aboriginal and Torres Strait Islander staff and service users.
The wording and scope of the genuine occupational requirement provisions vary across the different jurisdictions. Employers will need to check the wording of the law in the jurisdiction/s in which they operate to see if the jobs they intend to advertise would fall within the provision.
If this provision does apply to the particular position, it is recommended that in advertisements for the position the employer include prominent wording to the effect that:
‘[Name of employer] considers that being Aboriginal or a Torres Strait Islander is a genuine occupational requirement for this position under s 42 of the Discrimination Act 1991 (ACT)/ s 14 of the Anti-Discrimination Act 1977 (NSW)/ sub-s 35(1)(b)(ii) of the Anti-Discrimination Act 1996 (NT), s 25 of the Anti-Discrimination Act 1991 (Qld)/ sub-s 56(2) of the Equal Opportunity Act 1984 (SA)/ s 41 of the Anti-Discrimination Act 1998 (Tas)/ sub-s 26(3) or s 28 of the Equal Opportunity Act 2010 (Vic)/s 50 of the Equal Opportunity Act 1984 (WA) [select applicable].’
Note however that the federal Racial Discrimination Act does not include an exception for genuine occupational requirements. This means that even if being Aboriginal or Torres Strait Islander is a genuine occupational requirement for a position, an employer will still need to satisfy him or herself, and be prepared to demonstrate, that recruitment for this position also meets the criteria for a special measure in order to comply with that Act (set out in section 2 of the guideline).
While an employer may be satisfied that their targeted recruitment strategy meets the criteria of a special measure, it is important to note that this does not necessarily prevent a person from making a complaint about the measure under discrimination law.
Complaints under discrimination laws must first be made to the Commission (in the case of complaints under federal discrimination law) or the relevant state or territory discrimination/equal opportunity authority, except in Victoria where a complaint can be made directly to the Victorian Civil and Administrative Tribunal.
These bodies generally attempt to resolve the complaint through conciliation between the parties. If the complaint is rejected, dismissed, terminated, referred or otherwise not resolved by the Commission or state or territory discrimination/equal opportunity authority, there may be a formal hearing of the matter before a relevant tribunal, or in the case of federal complaints, the Federal Court or Federal Circuit Court.
In the event that a complaint is lodged, an employer will generally be provided with the opportunity to provide information which supports the existence of a genuine occupational requirement, or the assertion that the strategy is a special measure. If an employer follows the practical steps set out in the following sections of this guideline, this will assist in demonstrating that the strategy is a special measure which is consistent with discrimination law.
If the relevant decision-maker (i.e. the Commission/er, tribunal or court) is satisfied that the legislative requirements for a special measure are met, the complaint or claim against the measure would not be successful, because the measure would not be unlawful.
In some states, although legally unnecessary, an exemption for a special measure may be granted by a state or territory discrimination/equal opportunity authority or a tribunal (see section 5 and Appendix 3 of this guideline). If granted, an exemption provides greater certainty that a complaint relating to the measure would not be successful.
It should be noted that it is rare for the Commission or state or territory discrimination/ equal opportunity authorities to receive complaints about targeted recruitment strategies for Aboriginal and Torres Strait Islander people. In the last three years the Commission has not received any such complaints. Similarly, the discrimination/equal opportunity authorities in most other jurisdictions report that they too have received few or no such complaints in recent years.
 Note that the exception for ‘special needs programs and activities’ in s 21 of the Anti-Discrimination Act 1977 (NSW), which permits certain measures to promote equal access to facilities, services and opportunities for persons of a particular race, is currently interpreted by the New South Wales Anti-Discrimination Board as not including employment.
 Racial Discrimination Act 1975 (Cth), s 8(1); Discrimination Act 1991 (ACT), s 27; Anti-Discrimination Act 1996 (NT), s 57; Anti-Discrimination Act 1991 (Qld), s 105; Equal Opportunity Act 1984 (SA), s 65; Anti-Discrimination Act 1998 (Tas), ss 25 and 26; Equal Opportunity Act 2010 (Vic), s 12 (see also Charter of Human Rights and Responsibilities Act 2006 (Vic), s 8(4)); Equal Opportunity Act 1984 (WA), s 51.
 See Discrimination Act 1991 (ACT), s 42; Anti-Discrimination Act 1977 (NSW), s 14; Anti-Discrimination Act 1996 (NT), sub-s 35(1)(b)(ii); Anti-Discrimination Act 1991 (Qld), s 25; Equal Opportunity Act 1984 (SA), sub-s 56(2); Anti-Discrimination Act 1998 (Tas), s 41; Equal Opportunity Act 2010 (Vic), sub-s 26(3) and s 28; Equal Opportunity Act 1984 (WA), s 50.