The Australian Public Service Commissioner's Directions 2016 (the Directions) commenced on 1 December 2016 and replaced the 2013 Directions in their entirety.
Section 26 of the Directions provides an affirmative measure that gives agencies the flexibility to identify a vacancy as open only to Aboriginal or Torres Strait Islander persons. This includes short term non-ongoing vacancies that are not required to be advertised in the Gazette.
The affirmative measure is designed to address the under-representation of Aboriginal and Torres Strait Islander Australians in the Australian Public Service (APS).
The measure replaces clause 15 of the 2013 Directions. That clause limited the affirmative measure to vacancies advertised in the Public Service Gazette. The new provision in s.26 of the new Directions gives agencies the flexibility to use the affirmative measure for positions that are short term, irregular or intermittent. Agencies can take this opportunity to review recruitment practices to maximise identification of Indigenous employment opportunities.
Consistent with the Racial Discrimination Act 1975 and our human rights obligations, including those set out in international conventions, the aims of the affirmative measure are to:
- promote the right to equality and non-discrimination in employment for Aboriginal and Torres Strait Islander Australians
- acknowledge that all individuals have the right to employment, while recognising it is sometimes necessary to provide some groups in the community with additional support in order for them to enjoy their right to employment on an equal basis with others
- increase the number of Aboriginal and Torres Strait Islander Australians employed in the APS
- assist agencies to meet the objectives of the Commonwealth Aboriginal and Torres Strait Islander Employment Strategy.
It is important for agencies to consider and record their justification for using the affirmative measure. Key factors justifying its legality include the inequitable employment outcomes experienced by Aboriginal and Torres Strait Islander people as a group, and the fact that this situation is not improving.
It is also good practice for agencies to be explicit about the legal basis for the decision to restrict a vacancy to Aboriginal and/or Torres Strait islander applicants. This could be done by including in the vacancy notice and selection documentation that 'the filling of this vacancy is intended to constitute an affirmative measure under subsection 8(1) of the Racial Discrimination Act 1975'.
This guide to the affirmative measure should be read in conjunction with other relevant advice provided by the Australian Public Service Commission, including:
- Classifications and work level standards
- Non-ongoing employment
- Senior Executive Service: An HR manager's guide to engagement, promotion, mobility and separation
- The guide will be reviewed in December 2017, one year after the commencement of the revised affirmative measure.
Part 1: Scope of affirmative measure
The Indigenous employment affirmative measure set out in s.26 of the Directions can be applied to any ongoing, non-ongoing or casual APS vacancy, including those in the Senior Executive Service, regardless of the duties. It is not restricted to jobs requiring an understanding of issues affecting Aboriginal and Torres Strait Islander people. It may be applied to individual vacancies or bulk rounds, such as graduate recruitment rounds.
The affirmative measure may be applied in two circumstances:
- If the vacancy is ongoing or non-ongoing for more than 18 months (a full merit-based selection process is needed, including notification of the vacancy in the Public Service Gazette);
- If the vacancy is short-term - months or less - or for irregular or intermittent duties (gazettal of the vacancy is not required).
Recruitment processes for both of these circumstances are described in this guide.
Part 2: Eligibility of applicants
Subsection 26(2) of the Directions provides that the agency head or delegate must ensure that for a vacancy under this affirmative measure, the only eligible applicants:
- are of Aboriginal and/or Torres Strait Islander descent; and
- identify as Aboriginal and/or Torres Strait Islander; and
- are accepted by their community as being Aboriginal and/or Torres Strait Islander.
Evidence of Aboriginal or Torres Strait Islander status
An agency head or their delegate must be satisfied that applicants under the affirmative measure meet the three criteria above.
Rather than ask applicants to submit evidence with their application, it would be acceptable to require only shortlisted applicants to provide evidence. This means that evidence is not required to be provided unnecessarily. It will also allow agencies to form merit lists for subsequent vacancies, and allow merit lists to be shared between agencies. Note that strict privacy provisions apply to sharing merit lists.
Suitable evidence of Aboriginal or Torres Strait Islander status may include:
- a letter signed by the Chairperson of an incorporated Indigenous organisation confirming that the applicant is recognised as an Aboriginal and/or Torres Strait Islander person, or
- a confirmation of Aboriginal and/or Torres Strait Islander descent document executed by an Indigenous organisation.
If the above documents are not available, agencies may consider accepting a statutory declaration from the applicant.
Part 3: Ongoing vacancies and long term non-ongoing vacancies
Ongoing and non-ongoing vacancies for more than 18 months are required to be notified in the Public Service Gazette and a merit-based selection process undertaken.
Selection panel members should be trained in cultural capability. Consideration should be given to having a representative from the agency diversity team and/or an Aboriginal or Torres Strait Islander person on the panel. Agencies may wish to specify this in their recruitment policies.
Revise or develop the job description. Ensure it reflects only the inherent (essential) requirements of the job. Identify the key skills required to do the job.
Evaluate the role using the APS or SES work level standards to confirm classification level.
Notify the vacancy in the Public Service Gazette (APSjobs) and on other websites as desired. When lodging the vacancy on APSjobs, tick the 'Affirmative measure vacancy—Aboriginal and Torres Strait Islander applicants' box.
The following text will appear in the vacancy notification:
Affirmative measure vacancy—Aboriginal and Torres Strait islander applicants
The filling of this vacancy is intended to constitute an affirmative measure under Section 26 of the Australian Public Service Commissioner's Directions 2016. This vacancy is open only to Aboriginal and/or Torres Strait Islander applicants.
Ticking the box will also ensure that the vacancy will automatically be featured on the APS Indigenous Careers Portal.
Ensure the application form asks applicants if they are an Aboriginal or Torres Strait Islander person.
Shortlist applicants for further assessment. Contact shortlisted applicants to explain the selection process, including evidence requirements.
Conduct the assessment process and obtain references.
Make the selection decision.
Gazettal of outcomes is no longer required for engagement decisions. If the outcome is a promotion, withhold the name of the successful applicant in the Gazette. See Public Service Gazette requirements.
Contact all applicants and provide feedback. This is an important step in helping applicants achieve success in future applications.
Part 4: Short term vacancies or irregular or intermittent duties
For non-ongoing vacancies for a specified term or task for a period of up to 18 months, or for irregular or intermittent duties, s.22 of the Directions specifies requirements for notifying members of the community about the vacancy. Agency heads or delegates are to ensure, as far as practicable, that the vacancy is brought to the notice of the community in a way that gives eligible members of the community a reasonable opportunity to apply for it.
Agencies can meet this 'reasonable opportunity' requirement by advertising the vacancy or establishing non-ongoing employment registers. There is no requirement to notify the vacancy in the Public Service Gazette, although agencies may choose to do so.
It is recommended that agencies using non-ongoing employment registers contact all applicants on the register to advise them of the change to the Indigenous employment affirmative measure; ask if they wish to identify as an Aboriginal or Torres Strait Islander Australian; and explain the evidence requirements. This may also be done when the register is being renewed. Agencies with existing notifications of registers on APSjobs and their own websites should include information about the change to the measure.
As a vacancy arises that is to be filled under the Indigenous employment affirmative measure, revise or develop the job description (see above). Ensure selection panel members are trained in cultural capability and that where possible the panel includes a representative from the agency diversity team and/or an Aboriginal or Torres Strait Islander person.
Shortlist applicants for further assessment. Contact shortlisted applicants to explain the selection process.
Conduct the assessment process and obtain references.
Make the selection decision.
Contact all shortlisted applicants and provide feedback. This is an important step in helping applicants achieve success in future applications.
Part 5: Privacy
There is ordinarily no obligation for an employee to share information about their Aboriginal or Torres Strait Islander status. For the purpose of this affirmative measure, applicants will be required to confirm that they are an Aboriginal or Torres Strait Islander Australian in order to demonstrate that they meet the eligibility requirements.
Information about an employee's racial or ethnic origin is 'sensitive information' for the purposes of the Privacy Act 1988. Sensitive information has a higher level of protection and the person's consent is required for the information to be collected.
The Australian Privacy Principles provide that an agency can only use or disclose sensitive information for the purpose for which it was collected. Privacy legislation requires managers and HR practitioners to obtain consent from an individual to share information about their Indigenous status with other people in the agency.
Regulation 9.2 of the Public Service Regulations 1999 allows agency heads to use or disclose personal information in circumstances where the use or disclosure is necessary to the performance or exercise of employer powers. For more information see Use and disclosure of employee information.
Further information Agencies may contact the Diversity and Inclusion team at the Australian Public Service Commission at diversity [at] apsc.gov.au.