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LAUNCH OF AGE MATTERS: Chris Sidoti (2000)

Rights Rights and Freedoms

A report on Age Discrimination

Chris Sidoti, Human Rights
Commissioner, 18 July 2000, Council on the Ageing (Australia), Melbourne


I would like to welcome
you all to the launch of Age Matters: a report on age discrimination.
I would also like to thank Denys Correll and the Council on the Ageing
Australia for hosting this event.

Age Matters
is a response to the need for effective federal action on age discrimination.
For over 10 years federal governments of both political persuasions have
talked about this but done little. The situation now is that the Commonwealth
lags far behind every state and territory in protecting people from discrimination
based on age. Age Matters tells the Commonwealth it's time to catch

Age discrimination
against young and old

Age discrimination
is often seen as relevant only to older people but it is in fact an issue
for all of us. We are all potentially targets of age discrimination at
some stage of our lives - at 16 we may be thought too young to perform
a job; ironically some years later we may be seen as too old.

Younger and older
age groups in particular are judged by their age rather than their abilities.
It is often presumed that because you are older you are lacking in energy
or enthusiasm, or that you are not interested in working or unable to
adapt to change. If you are young it is often presumed that you are lacking
in values or opinion, are inexperienced or unable to commit. These stereotypes
can seriously limit access to opportunities and concrete economic and
social benefits.

It doesn't matter
what age you are, you should not be denied access to accommodation, goods
and services, employment, social security and other benefits solely because
of your age and without good reason.

Although it shouldn't
'matter', in fact what the Human Rights Commission hears from people is
that age does 'matter'. That's why we have titled the report Age

Last April at a seminar
in Canberra we launched a discussion paper on age discrimination, that
asked whether Age matters?

The discussion paper
called for public comment on a wide range of areas where age distinctions
are made, to identify some of the gaps in age discrimination legislation
and suggest ways of eliminating age discrimination.

We received 57 submissions
from a variety of organisations discussing a wide range of areas where
age discrimination occurs against younger and older people. The Age
report we are launching today incorporates the comments made
in submissions.

Age discrimination
in employment

We were told that
employment is the key area where age matters.

An obvious example
is in the defence force. Many age distinctions are specified in defence
force legislation, regulations and policy, setting age limits for recruitment,
promotion and duration of employment. The Australian Defence Force (ADF)
currently requires all employees to maintain a standard of health and
fitness amounting to combat readiness. That is fair and proper. But the
defence force seeks to meet this requirement not only by assessing the
abilities of individual applicants but by imposing strict limitations
for all applicants to the forces and requirements that most personnel
must retire by the age of 55 years. This means that, if you are a 36 year
old, no matter how fit and capable you are, you are automatically barred
from entering certain sections of the air force. And if you are a 55 year
old, with more than 20 years experience in the forces, no matter how fit
and capable you are, you are forced to retire, even though you may be
suitably qualified and experienced in the many non-combat jobs currently
needed in the forces.

I have recently issued
a report, which I have copies of today, on four complaints to the Commission
of discrimination by the Commonwealth in the ADF. The complainants were
three prospective entrants to the ADF and one serving member who complained
about the upper age limit for applicants for a number of positions, in
all cases 35 years. I found in all cases that the age limit constituted
discrimination in employment and could not be justified.

Young people also
face discrimination in employment. As one submission told us about a particular

The discrimination
at [this company] is subtle, young people think that the Managers are
just mean, yet looking back on the way young employees were treated
I think you could definitely call it discrimination. Older workers would
never be treated the way that young workers are at [this company], nor
would they stand for it.

We all want young
people to find work. Government policy is directed towards that. But what
is particularly disheartening for young people is that age often matters
even for jobs which do not require experience. Even when young people
have some experience, they are told point blank that they are too young.
One mother of an 18 year old school leaver rang us in despair. Her son
had been told directly several times by employers on the phone 'sorry,
but we don't want to take on someone so young'. And, as outlined in the
report, an 18 year old who is forced to apply for income support, because
he or she cannot find a job, receives a differential payment of support
based solely on age not circumstances.

These are but a few
examples raised with us of judgements based on age rather than abilities
or needs. Other employment-related areas highlighted in the report include
differences by age in access to training and promotion, redundancy payments,
superannuation, workers' compensation and wages. Submissions also raised
difficulties in finding accommodation, buying insurance, getting healthcare
and being denied a range of income supports and benefits.

Lawful discrimination

Not all discrimination
is unlawful. Anti-discrimination laws generally permit distinctions on
two principal grounds.

Usually distinction
in employment is lawful if it is genuinely based on the 'inherent requirements
of the job'. This allows an employer to impose age limits when it can
be shown that they are essential in a particular job. For example, an
actor playing a child's role in a television production may have to be

Second, under anti-discrimination
and human rights laws distinction is also lawful when it can be justified
as a special measure of protection or assistance. For example, government
programs that help young people or older people find work may be considered
a special measure because they assist young people and older people to
overcome their relative disadvantage in the employment system.

In Australia we have
good state and territory anti-discrimination laws to prevent age discrimination.
They recognise that certain age distinctions are justifiable and indeed
necessary to assist certain sections of the population. And they prohibit
unjustifiable age discrimination and provide remedies.

However, Age Matters
reveals that there are some continuing problems with our legal protection
against age discrimination.

Legislative gaps
in protection

The major problem
is that, although State and Territory coverage of age discrimination is
fairly comprehensive, the Commonwealth legislation lags behind.

Unlike race, sex
and disability discrimination, there is no age discrimination act at the
federal level which makes age discrimination unlawful. The federal Workplace
Relations Act 1996
provides some coverage in relation to termination
in employment but it does not cover other terms of employment, such as
redundancy provisions or recruitment or promotion. This is important for
Commonwealth employees, who are not covered by State and Territory legislation.
Under the Human Rights and Equal Opportunity Commission Act 1986 a
Commonwealth employee who has been discriminated against in employment
on the ground of age can complain to the Commission and we are able to
investigate the complaint. However, our conclusions are not enforceable,
they are only recommendations. Also, the Act only covers discrimination
in employment.

Second, although
all the State and Territory anti-discrimination laws are similar in coverage,
they are not identical. There are some differences in how age discrimination
is treated, especially in terms of the exemptions to the provisions. For
example, under the Tasmanian Anti-Discrimination Act, compulsory
retirement is exempt from the prohibition of age discrimination.

We recommend in Age
that the federal government improve our federal anti-discrimination
legislation to make age discrimination unlawful. This will not only protect
Commonwealth employees and those who benefit from Commonwealth programs.
It will also provide a model of anti age-discrimination legislation and
improve uniformity of coverage for other Australians.

We are well aware
that making age discriminatory practices unlawful in federal anti-discrimination
law would not solve all the problems of age discrimination raised in submissions.
As well as bad practices there are bad laws. There is a plethora of federal,
State and Territory laws and policies which include age distinctions -
everything from superannuation and tax legislation through to the age
which you can apply for a driving licence and whether you are paid junior
wage rates. Some of these may be justifiable - but others are outdated
and need to be changed through legislative amendment.

We recommend that
the federal government review these laws with the view of eliminating
unreasonable and unjustifiable age distinctions. For example, the Social
Security Act 1991
should be amended to ensure that income support
for young people is paid according to need rather than age.

Education and

It is also important
to remember that legislation does not solve every problem. Many submissions
suggested that changing community attitudes is crucial. I agree. Stereotypes
and unfair assumptions about certain age groups are deeply entrenched
in our society. Employers, employees, media and the general public need
to have these assumptions challenged. We also need to present the positive
images of community contribution by people of all ages. Respecting diversity
across all generations benefits us all.

Some opponents of
legislation argue that law at most can only change behaviour not attitudes.
However, education and legislation are two indispensable and complementary
ways of ensuring equal opportunity. As Martin Luther King said

morality cannot
be legislated but behaviour can be regulated. Judicial decrees may not
change the heart, but can restrain the heartless.

Who needs to take
responsibility for changing attitudes? Everyone. But it is government
- especially federal government - that must demonstrate a commitment to
combating this unfair discrimination.

Federal government

The Australian government
has agreed under international law to eliminate discrimination on a number
of grounds, including age. These international treaties include the Discrimination
(Employment and Occupation) Convention
or ILO 111, the International
Covenant on Civil and Political Rights
and the International Covenant
on Economic, Social and Cultural Rights
. There are also treaties and
declarations which demonstrate our special responsibilities to ensure
that children's and older people's rights are respected.

I am very pleased
that since the release of the discussion paper in April 1999, the federal
government has made some encouraging moves towards addressing the problems
faced by older people in the workforce. In December last year, after many
years dragging its feet, the federal government finally abolished compulsory
retirement in the Commonwealth public service. Other initiatives include
amending the Safety, Rehabilitation and Compensation Regulations to allow
public service employees to receive incapacity benefits for a maximum
of two years at any age after 63. And I have been advised that the ADF
is reviewing its age requirements for recruitment and promotion. The House
of Representatives Standing Committee on Employment, Education and Workplace
Relations has also made a comprehensive inquiry into older workers seeking
employment. I look forward to the results of that inquiry.

However, I remain
disappointed that protection from age discrimination has still not been
addressed comprehensively by the federal government, despite bi-partisan
support for action for most of the last decade. I am also concerned that
age discrimination facing younger workers is ignored.

In Age Matters
we urge the federal government to take the lead in addressing age discrimination
and ensure that all Australians receive equal and adequate protection
from discrimination.

Today we have the
pleasure of hearing from two people who represent populations towards
the two ends of the age spectrum - the young and the old. Denys Correll,
the Executive Director of COTA Australia, has been outspoken in protecting
the interests of the older people in our population. Clare Griffin works
for the CREATE Foundation in Victoria, which is an organisation run by
and for children and young people in care. I thank them for agreeing to
talk today about the issue of age discrimination from these two perspectives.

See Also