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

7-Eleven temporary exemption application (2022)

The Australian Human Rights Commission has received an application from 7-Eleven Stores Pty Ltd and Convenience Holdings Pty Ltd (together, 7-Eleven) for a temporary exemption to the Age Discrimination Act 2004 (Cth) (ADA).

7-Eleven 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. The exemption is sought for a period of three years.

The Commission has the power to grant temporary exemptions under section 44 of the ADA.

Request for submissions

The Commission invited interested parties to make submissions on this application. The closing date for written submissions was 11 November 2022 (except where an extension until 18 November 2022 was agreed). The following submissions were received by the Commission:

Submission No.	Organisation/Individual	Submission
1	Northern Territory Government	Letter from NT Health Minister
2	Foundation for Alcohol Research & Education (FARE)	Letter from FARE
3	Cancer Council	Letter from Cancer Council
4	South Australian Government	Letter from SA Health Minister

Decision

On 7 March 2023, the Commission gave notice of its decision to grant the temporary exemption for a period of 3 years. The decision can be accessed here:

Decision PDF

Commission decisions on applications for temporary exemptions

Current applications and decisions

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 Decision PDF	17 October 2019	17 October 2022

Past decisions (expired)

Applicant	Summary	Decision	Date gazetted	Date of expiry
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 Decision PDF Decision WORD	N/A	N/A
Carnival Australia	Applicant seeks to restrict passengers under 19 years of age from travelling on its cruise ships.	Granted Decision PDF Decision WORD	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