Exemption applications under the Age Discrimination Act 2004 (Cth)
Legal
Section 44 of the Age Discrimination Act 2004 (Cth) gives the Commission the power to grant temporary exemptions from certain provisions of the Act. Temporary exemptions may be granted for up to five years at a time and may be granted subject to specified terms and conditions. The effect of a temporary exemption is that discrimination covered by the exemption is not unlawful under the Act while the exemption remains in force. Because the Act already provides general exemptions (Division 4 Part 4 of the Act – ss 33-43) and because any temporary exemption must be consistent with the objects of the Act, the circumstances in which it will be necessary or appropriate to grant such exemptions will be limited.
The Act does not set out in any detail the criteria or procedures that the Commission should use in considering applications for temporary exemption. Section 44 of the Act simply provides the Commission with a discretion to grant such exemptions.
Because of the importance of the power to grant exemptions, and its potential impact on rights and obligations under the Act, the Commission has developed guidelines to assist the Commission in exercising this discretion. By publishing these guidelines, the Commission also aims to assist interested parties in having an effective say in decisions about possible exemptions that may affect their interests.
Current applications for temporary exemptions
Carnival Australia
The Australian Human Rights Commission has received an application from Carnival Australia for a further temporary exemption to the Age Discrimination Act 2004 (Cth) (ADA).
Carnival seeks the exemption to restrict passengers aged 17-19 from travelling on Carnival Australia's cruise ships in the period 1 November to 31 January.
The Commission has the power to grant temporary exemptions under section 44 of the ADA.
Current application
Relevant legislation
The Age Discrimination Act 2004 (Cth) can be accessed on the Federal Register of Legislation.
Commission Guidelines
Request for submissions
The Commission invited interested parties to make submissions on this application. The Commission requested submissions by Wednesday, 11 October 2023.
Preliminary view
On 26 October 2023, the Commission gave notice of its preliminary view:
The Commission invited interested parties to make submissions in response to its preliminary view. The closing date for submissions was Wednesday, 6 December 2023.
On 30 November 2023, the Commission received a submission from Anti-Discrimination NSW (ADNSW) regarding the Commission's preliminary decision:
Decision
On 21 December 2023, the Commission gave notice of its decision in relation to the application:
Commission decisions on applications for temporary exemptions
Current exemptions
| Applicant | Summary | Decision | Date gazetted | Date of expiry |
| 7-Eleven | Applicant seeks the exemption to allow 7-Eleven store operators and staff (whether franchised or corporately operated) to restrict the sale of non-alcoholic, but alcohol-like, beverages to people over the age of 18 years. | Granted | 8 March 2023 | 8 March 2026 |
Past decisions (expired)
| Applicant | Summary | Decision | Date gazetted | Date of expiry |
| Carnival Australia | Applicant seeks to restrict passengers under 19 years of age from travelling on its cruise ships | Granted | 17 October 2019 | 17 October 2022 |
| Uber (Portier Pacific Pty Ltd, Uber Portier B.V. and their affiliates) | Applicant seeks to restrict use of the App for individuals under 18 years of age wishing to become delivery drivers or provide use of the App on different terms. | Granted | N/A | N/A |
| Carnival Australia | Applicant seeks to restrict passengers under 19 years of age from travelling on its cruise ships. | Granted | 26 June 2017 | 22 June 2018 |
| Carnival Australia | Applicant seeks to restrict passengers under 19 years of age from travelling on its cruise ships. | Granted
| 28 November 2013 | 15 May 2016 |
| Caloundra Gardens | Applicant seeks to restrict residence at Caloundra Gardens Retirement Village to persons over 50 years of age. | Granted
| 16 May 2012 | 3 May 2015 |
| NSW Department of Family and Community Services, Ageing Disability and Home Care | Applicant seeks to restrict admission to a licensed boarding house to persons over 18 years of age. | Granted Decision PDF Decision WORD | 25 January 2012 | 18 January 2013 |
| Carnival Australia | Applicant seeks to restrict participation in its cruises to persons over 19 years of age, unless accompanied by a responsible adult, between 1 November and 7 January annually; and permit a quota of 60 passengers per cruise who are under 19 years of age and not accompanied by a responsible adult between 8 January and 31 January annually. | Granted Decision PDF Decision WORD | 12 January 2011 | 22 June 2013 |
| Carnival Australia | Applicant seeks to restrict participation in its cruises to persons over 21 years of age, unless accompanied by a parent or guardian. | Denied Decision PDF Decision WORD | N/A | N/A |
| University of Western Sydney | Applicant seeks to offer three ‘end of career transitioning schemes’ to permanent academic staff, where expressions of interest in the schemes would be accepted or rejected on the basis of age. | Denied Decision PDF | N/A | N/A |
| MOSEDG Inc. trading as Youth Connect | Applicant seeks to advertise employment vacancies specifically for young people between 15 and 24 years of age. | Denied Decision PDF | N/A | N/A |
| Department of Health and Ageing | Applicant seeks to provide assistance in reducing the costs of continence aids to persons between 16 and 65 years of age. Persons over the age of 65 years would only be eligible for assistance if they worked in paid employment for at least 8 hours per week. | Denied Decision PDF | N/A | N/A |
| Plus 40 Pty Ltd | Applicant seeks to restrict the use of its employment and training services to persons over 40 years of age. | Denied Decision PDF Decision WORD | N/A | N/A |