Section 44: Social justice and affirmative action

1. The Parliament must make provision for programs designed to achieve for all groups or categories of persons who are disadvantaged effective equality of access to:

1. education and training;
2. land and housing; and
3. participation in commerce and in all levels and branches of service of the State.

2. An Act that establishes a program under subsection (1) must specify:

1. the goals of the program and the persons or groups it is intended to benefit;
2. the means by which those persons or groups are to be assisted to achieve the goals;
3. the performance indicators for judging the efficacy of the program in achieving the goals; and
4. if the program is for the benefit of a group, the criteria for the selection of the members of the group who will be entitled to participate in the program.

3. A person may take special measures in accordance with this section for the purpose of achieving substantial equality between different groups or different categories of persons.

4. A person does not discriminate against another person under section 38 by taking those special measures.

5. Subsection (3) does not authorize the taking, or further taking, of special measures for a purpose referred to in that subsection that is achieved.

6. The administering department or other agency must monitor the efficacy of a program established under this section by reference to the specified performance indicators. The Minister must make an annual report to Parliament on the results revealed by the monitoring.

7. Unless it has sooner expired in accordance with its terms or has been repealed, an Act establishing a program under this section expires on the tenth anniversary of its commencement, but the program may be re-established, unless the benefited persons or groups have demonstrably ceased to be in need of it.

8. A program established under this section must not, directly or indirectly, deprive any person not entitled to its benefits of:

1. any position or seniority in the service of the State:
2. any place in an educational or training institution;
3. a scholarship or other financial support; or
4. a right to carry on any business or profession or to enjoy any other opportunity, amenity or service to which that person has already become, and would otherwise remain, entitled.

9. For the purposes of this section, an ethnic community is to be taken as having effective quality of access to a level or branch of service of the State only if it is represented there in a number broadly proportionate to its number in the adult population as a whole, unless its under-representation is due solely to its particular occupational preferences.

10. In this section service of the State means service in any capacity on appointment:

1. by the President, a Minister, the Cabinet, a commission or the holder of a public office;
2. by resolution of the Parliament or a committee of the Parliament; or
3. by or on behalf of any local authority; whether or not the appointee is remunerated wholly or partly by public money, but does not include service as a member or employee of a body provided for in an Act referred to in section 185.