4. New South Wales - Applying for an exemption for a targeted recruitment strategy

Aboriginal workers in an office

New South Wales is the only jurisdiction that does not have a clear special measures provision in its discrimination legislation. Therefore an employer wanting to conduct a targeted recruitment strategy for Aboriginal and Torres Strait Islander people in NSW must apply for an exemption from the Anti-Discrimination Act 1977 (NSW) (the NSW Act). The only exception to this is if being of a particular race or ethnic background is a ‘genuine occupational requirement’ for the position advertised and the employment involves one or more of the circumstances set out in s 14 of the NSW Act.

For guidance on how to apply for an exemption in NSW to conduct targeted recruitment of Aboriginal and Torres Strait Islander people, see Appendix 2 of this guideline.

Employers recruiting in NSW must also be able to show that a targeted recruitment strategy meets the requirements of a special measure (set out in section 2 of this guideline), even if they are granted an exemption from the Anti-Discrimination Act 1977 (NSW) to conduct the program (or can rely on the genuine occupational requirements provision). This is because an employer recruiting in NSW must comply with both the NSW Act and the federal Racial Discrimination Act, the latter of which does not allow for exemptions.