Aboriginal and Torres Strait Islander identified positions
Identified positions are where an employer identifies that a role is only to be filled by a particular attribute, or characteristic. Generally it is unlawful discrimination to limit a work opportunity to a person of a particular race.
However, the Anti-Discrimination Act 1991 sets out some circumstances, called exemptions, where discrimination on the basis of race can be lawful. An employer can argue that an exemption applies if a complaint of discrimination is made against them. The exemptions that may apply in relation to identified positions are:
- Genuine occupational requirement: Where there is a genuine requirement for a person with particular attributes to be able to properly carry out the duties involved in a job, it may not be unlawful to discriminate.
- Equal opportunity measure: Something done to promote equal opportunity of a group of people in a field where they are currently disadvantaged.
- Welfare measure: Something done to benefit a particular group of people might not be unlawful, even if it appears to be discriminatory.
The term ‘identified position’ is not used in the Act. However, an employer may identify that a position is to be filled only by an Aboriginal or Torres Strait Islander applicant, if they consider that one of the exemptions outlined in the Act applies.
For example, a business or agency may offer a service or program specifically for the benefit of Aboriginal and Torres Strait Islander peoples. This is a welfare measure under section 104 of the Anti-Discrimination Act 1991.
If it is essential that the person delivering the service or program is an Aboriginal and Torres Strait Islander, this would be justification for creating an identified position on the basis of a genuine occupational requirement, and it could be advertised as such.
Recruitment for the position would then seek only Aboriginal and Torres Strait Islander applicants, and text of advertisements could state:
- To perform this role it is essential that the person who holds the position be an Aboriginal or Torres Strait Islander person. It is therefore a genuine occupational requirement under section 25 of the Anti-Discrimination Act 1991 that applicants are Aboriginal or Torres Strait Islanders.
- This is a program to redress the under-representation of Aboriginal and Torres Strait Islander people in this [industry/campus/area…] and is an equal opportunity measure under section 105 of the Anti-Discrimination Act 1991. Applicants must be of Aboriginal or Torres Strait Islanders.
Queensland government departments, agencies and employees are bound by Public Service Commission (PSC) directives and guidelines. Relevant instruments in relation to identified positions for Aboriginal and Torres Strait Islander peoples are:
- Recruitment and selection Directive No 15/13;
- Evidence of attribute – Aboriginal and/or Torres Strait Islander identified roles – PSC Guideline 02/13, 20 June 2013.