We’re told to Close the Gap, but 50D says we can’t target the people who can actually do it

Kaala Barna recently advertised the role of Senior Consultant. The criteria includes experience working with Aboriginal communities, and encourages Aboriginal people to apply. But isn't targeting only Aboriginal people. Why? We're an Aboriginal consultancy, so why shouldn't we? The short answer is, we can't. Seriously.

This is something we have needed for a while, and I have been dragging my feet for a few reasons; I was hoping we could recruit by word of mouth and trust that it would happen when it would happen. I also knew that there was a lot of pre-work to be done in order to comply with our responsibilities as an employer. But the urgency increased, and we decided to advertise.

Despite not practicing, my inner lawyer remains (relatively) compulsive in matters of legality. In particular, I wanted to make sure we were complying with the relevant legislation when advertising the role, particularly the Racial Discrimination Act 1975 (Cth) (RDA) and the Equal Opportunity Act 1984 (WA) (EOA). Employers in WA must comply with both acts, which broadly outline discrimination laws and prevent discrimination based on race.

In relation to employment there are two exceptions that enable employers to target particular racial groups:

1. Special measures to address disadvantage of a particular group; and

2. Where race is a genuine occupational requirement.

Special measures

The first exception can be found in s. 8 of the RDA and s. 51 of the EOA. Satisfying the elements of s.8 will generally satisfy the elements of s.51.

1. Necessary because members of a racial group are disadvantaged because of their race

2. Will promote equality opportunity for members of that racial group

3. Its sole purpose is to promote equal opportunity (and will be done in good faith)

4. Elements of a special measure are reasonable and proportionate (including reasonably likely, appropriate and adapted to achieve its purpose)

5. Will stop once its purpose has been achieved

Due to the substantial data we have showing the disadvantage experienced by Aboriginal people, it is easy enough for an employer to satisfy the elements of the first exception. Employers should prepare reasoning and policies outlining the rationale of their decision, addressing the above elements. When this is done, employers can:

1. Include something along the lines of "Aboriginal people are encouraged to apply for this role" in their job advertisement; and

2. Preference Aboriginal applicants as long as they have satisfied the criteria for the role.

This exception is applicable to Kaala Barna and we have taken the steps to fulfil its requirements.

Genuine Occupational Requirement

The second exception is not federally legislated, but can be found in s.50 of the EOA. For the purposes of office-based roles, s.50(d) is the only relevant subsection. This specifies that [Aboriginality] is a genuine qualification when "providing persons of a particular race with services for the purpose of promoting their welfare where those services can most effectively be provided by a person of the same race". This exception could include roles like Aboriginal Health Workers, Aboriginal Employment Officers or Aboriginal Education Workers. They work with individual Aboriginal people.

Kaala Barna is a consultancy, not a service provider. Our clients are sometimes service providers and sometimes Aboriginal organisations, but we are not providing services directly to Aboriginal people. Therefore, we are not enabled by the legislation to specifically hire Aboriginal people.

This is quite frustrating, as in our opinion, Aboriginality IS a genuine qualification. When we first started consulting, we thought our approaches and solutions for clients were straightforward and common-sense. We have since realised they are for us, only because we are Aboriginal. We have the lived experience. We are guided by our families and communities. Most non-Aboriginal people have not had the benefit of this experience.

We are sometimes approached to do work as a "tick the box" exercise. To make sure organisations hit their targets, or to show they're doing the right thing - even though they want us to do things the way they have always been done. We will compromise to an extent, but have some hard lines. Sometimes that means we lose work, and we're okay with that, because profit is fairly low on our priority list.

More frequently, we are approached to do work in ways that work for Aboriginal people. New ways. Ways that the Aboriginal Empowerment Strategy and Closing the Gap say are so important. Ways that have been very much conceptual, which people everywhere are struggling to operationalise. How do we embed cultural governance? What does culturally safety mean? What does is actually look like, practically? How do we support and empower the ACCO sector? What does a safe service look like for Aboriginal people?

My Aboriginal friends and colleagues are working SO hard to make this happen. Research shows that this is the way to improve outcomes - Aboriginal people working for Aboriginal people. We know what needs to be done. There's stuff we just know and we don't need to explain to each other or find the words. We just get it.

And it is not something that you can necessarily train someone in. The most culturally competent (non-Aboriginal) people I know (like, really, REALLY amazing) still need regular sit downs to talk through why the way they are doing things isn't going to work. We are trying hard enough to teach our clients - and that's what we need to focus on. Supporting the broader system to understand and accompanying them to make changes that will make a real difference to Aboriginal people (and actually I will say this 'til the cows come home, these changes will benefit everyone in the end but that's another story).

Legally, we cannot target Aboriginal people to recruit for positions at Kaala Barna.

But the reality is that Aboriginality is a genuine occupational requirement in this space; and to be honest the legislation should reflect that if the WA Government is serious about the Aboriginal Empowerment Strategy.

People might say, "Well, sure, the legislation doesn't technically apply, but lots of organisations advertise roles that also don't fall within the definition, and they're fine." Yes, they do, and yes nothing catastrophic has happened to any as far as I know. That's their lookout. Before the referendum, maybe I would have made a different decision. But since the referendum, I am nervous. The political landscape is shifting, and the indignation of non-Aboriginal people feeling disempowered is getting louder. Racists are feeling bolder. So, I made the decision not to advertise the role as s.50(d) because there could be that one Karen Reichmann who makes a complaint and before I know it our fledgling consultancy would be in front of the SAT. Low risk maybe, but high stakes.

If you'd like to apply, here is the link.