Submission on the Age Discrimination Bill 2003
Legal
Submission to the
Senate Legal and Constitutional Legislation Committee
on the Age Discrimination Bill 2003
3 September 2003
1. INTRODUCTION
1.1 The Human Rights and
Equal Opportunity Commission (Commission) welcomes the federal government's
proposal in the Age Discrimination Bill 2003 ('the Bill') to make discrimination
because of age unlawful.
1.2 The concept of age
discrimination is not new. All State and Territories have, for some years, made
discrimination on the ground of age unlawful through anti-discrimination and
equal opportunity laws. [1] Since 1990 the Commission has had
the power to inquire into and attempt to conciliate complaints alleging age
discrimination in employment and occupation. [2] However, unlike
complaints made under the Racial Discrimination Act 1975 (Cth) ('RDA'),
Sex Discrimination Act 1984 (Cth) ('SDA') and Disability Discrimination
Act 1992 (Cth) ('DDA'), complaints of age discrimination do not currently
give rise to any enforceable legal right or remedy. If the Commission finds
that an act or practice constitutes age discrimination, action taken by the
Commission is limited to preparing a report with recommendations which is provided
to the Attorney-General for tabling in federal Parliament. [3]
Since 1996, a number of reports under the Human Rights and Equal Opportunity
Commission Act 1986 (Cth) ('HREOC Act') concerning discrimination based
on age in employment and occupation have been tabled. [4]
1.3 In May 2000 the Commission
produced its report Age Matters: a report on age discrimination ('Age Matters').
This report recommended enactment of comprehensive federal age discrimination
legislation and the review and amendment of a number of Commonwealth laws that
contained age discriminatory provisions. [5] In reports to
Parliament on age discrimination complaints in 1996 and 1997, the then Human
Rights Commissioner also recommended the enactment of federal age discrimination
legislation. [6]
1.4 The Commission was
involved in the consultation process on the development of the federal age discrimination
legislation. It participated in all meetings of the Core Consultative Group
and working parties. These meetings enabled the Commission to better understand
how age as a criterion permeates most areas of public life and the far-reaching
effect age discrimination has, both positive and negative, on all sectors of
the community. Unlike a person's race or ethnic background, age is an ever-changing
personal characteristic and what one may call for from the legislators in one's
youth will differ vastly from one's concerns in middle and later age. The balance
between these often competing interests is a complex matter and one that the
legislators must face when considering all laws that propose to contain age
as a criterion. The Commission is mindful of this complexity in making this
submission to the Committee. The Commission's response to the Information Paper
Containing Proposals for Commonwealth Age Discrimination Legislation, December
2002, can be found at http://www.humanrights.gov.au/legal/age_discrimination_legislation.html
1.5 The Commission considers
that the objectives of anti-discrimination legislation must be as beneficial
and broad-reaching as possible. The Commission favours consistency of laws and
supports a model for age discrimination legislation which is largely based on
current federal anti-discrimination laws. The Commission considers that the
proposed legislation should not be too prescriptive and should be flexible enough
to deal with public concerns that may emerge over time.
1.6 Generally, the Commission
supports the content of the Bill. However, the Commission has concerns about
certain provisions in the Bill and wishes to focus on these aspects in this
submission. These concerns are summarised below and are expanded on in the body
of this submission.
- Clause
16 Dominant reason test
The Commission opposes the introduction of a dominant reason test into the
new legislation and is of the view that the legislation should reflect the
same test as contained in current federal anti-discrimination legislation.
The Commission is concerned that a dominant reason test will make it harder
for people to make successful complaints as an act will only be taken to be
done on the basis of the age of a person if their age is the dominant reason
for doing an act. It may also have the effect that due to the different test
applied, age discrimination may not be considered to be as important as race,
sex or disability discrimination and this may undermine the positive benefits
contained in the legislation. The Commission also notes that the dominant
reason test was removed from the RDA in 1990 as a result of concerns about
the practical application of the dominant reason test.
- Clause 33 Exemption
for positive age discrimination
The Commission supports the inclusion of a provision in the age discrimination
legislation that provides for positive age discrimination in order to reduce
disadvantage or to meet the special needs of a particular age group. This
would be largely consistent with the special measures provisions that currently
exist in the RDA, SDA and DDA.
However, the Commission
is of view that clause 33 of the Bill extends the current understanding of
a special measures provision and may undermine the objective of the proposed
legislation to eliminate age discrimination.
- Clause 6 Age
discrimination and disability discrimination
While the Commission appreciates the Government's concern that the proposed
age discrimination legislation should not create an alternative avenue for
complaints of disability discrimination that are properly covered by the DDA,
the Commission is not convinced that the proposed legislation needs to include
specific provisions to deal with this. The Commission notes that such provisions
are not included in any other federal, State or Territory legislation. The
Commission is of the view that any potential overlap between grounds of discrimination
covered by different federal anti-discrimination laws is appropriately dealt
with through the complaints process. The Commission submits that it is essential
that the proposed legislation does not prevent people from making a complaint
under both the DDA and age discrimination legislation where they believe that
their age and disability are two distinct reasons for the alleged less favourable
treatment.
- Clause 39(1)
Exemption relating to direct compliance with laws, orders etc including Australian
Defence Force
The Commission does not consider that defence force legislation and its subsidiary
instruments listed in Schedule 1 to the Bill should be specifically exempt
from the proposed law, except so far as it relates to the minimum age for
enlistment and cadet schemes. As an employer, the Commission considers that
the inherent requirements provisions should be the appropriate exception for
any of the current age based criterion used by the defence forces including
those for entry for particular positions, transfer, promotion and retirement.
1.7 The Commission also
wishes to make a brief comment concerning other provisions of the Bill. These
provisions are as follows.
Part 3 - Extension of concept of age discrimination to include relatives and
associates
- Clauses 14
and 15 Definition of direct and indirect discrimination
- Clause 25 Exemption
for youth wages
- Clause 43 Exemption
in relation to migration legislation
2. DOMINANT REASON
2.1 Clause 16 of the Bill
provides:
"If
an act is done for 2 or more reasons, then, for the purposes of this Act,
the act is taken to be done for the reason of the age of a person only if:(a) one of the reasons is the age of the person; and
(b)
that reason is the dominant reason for the doing of the act."
2.2 It is relevant to note
firstly that the content of clause 16 has appeared for the first time in the
Bill. The Commission understands that it did not form any part of discussions
within the Core Consultative Group nor was it raised in the Attorney-General's
Information Paper: Proposals for Commonwealth Age Discrimination Legislation.
2.3 As the Explanatory
Memorandum to the Bill notes, the equivalent provisions to clause 16 in all
other federal anti-discrimination legislation [7] provide that
if an act is done for two or more reasons and one of the reasons is because
of a prohibited ground (such as disability, sex or race) then the act will be
taken to be done on the basis of the prohibited ground. These provisions specifically
state that the prohibited ground does not need to be the dominant or substantial
reason for doing the act.
2.4 However, until 1990
the RDA required that the grounds included in that Act had to be the dominant
reason for the doing of the discriminatory act. Amendments made by the Law
and Justice Legislation Amendment Act 1990 (Cth) [8] introduced
the current test into s18 of the RDA. While the Explanatory Memorandum to that
Bill was silent as to the reasons for the change to s18, the Hansard debates
reveal some of the consideration given to this amendment.
2.5 For example, the Hon.
Daryl Melham MP was of the view that the amendment would be a "major improvement"
on the operation of the Act and would significantly tighten its effect. [9]
The Opposition at the time did not oppose the amendments contained in the Bill,
[10] but raised a number of concerns of a "practical nature".
[11] The Hon. Andrew Peacock MP noted in relation to the new
s18 of the RDA that there was "merit in having uniformity between the provisions
of the Racial Discrimination Act and the Sex Discrimination Act" [12]
and that it would be desirable to have uniformity between State and federal
legislation in the area of equal opportunity. [13] In addition,
he referred to a decision of the then President of HREOC in the case of Ardeshirian
v Robe River Iron Associates [14] as an example of a
case in which concerns were expressed about the dominant purpose test then contained
in the RDA. [15] The President noted [16]
that the application of s18 presented "considerable difficulty… requiring
an evaluation to be made of the respective weight of the two reasons in contributing
to the decision". [17]
2.6 Clause 16 of the Bill,
therefore, takes a very different approach to that taken in other federal legislation.
In addition, none of the Australian State and Territory anti-discrimination
legislation has a dominant reason test. Five jurisdictions [18]
adopt the same test as found in the RDA, SDA and DDA. The remaining three jurisdictions
[19] require that the prescribed ground is a substantial reason
for the discrimination. Case law arising from those jurisdictions with this
test indicates that "substantial" means "of substance or weight as opposed to
of little moment, insignificant or negligible" [20] and:
"is not intended to denote
a ground which predominates over other grounds. The premise for the operation
of s 6(2) [of the Equal Opportunity Act 1984 (SA)] is that there was
more than one reason for the conduct and at least the discriminatory reason
is of some substance". [21]
2.7 The Commission considers
that while uniformity of anti-discrimination laws across the Australian jurisdictions
would be the ideal, that, at the very least, uniformity between federal anti-discrimination
laws would give appropriate recognition to the human rights standards that such
laws are based upon and would be highly beneficial in terms of requiring the
same standards of behaviour in certain areas of public life.
2.8 The Commission is of
the view that the dominant reason test would make it more difficult for a person
to make a successful complaint of age discrimination as that person would need
to show that their age was not just a reason or a substantial reason for the
less favourable treatment, but that it was the dominant reason for the action.
This test could also invite litigation focusing on the interpretation of the
term "dominant reason' and whether a reason was a dominant or a secondary one.
The Commission also notes that where the evidence in a case may establish that
a prohibited ground is only one of two or more reasons for a particular act,
the fact that the prohibited ground is not necessarily the dominant or substantial
reason has been acknowledged in some cases decided under current federal anti-discrimination
legislation in the award of damages made by the decision maker. [22]
2.9 The Commission also
notes the statement in the Explanatory Memorandum that "…the primary solution
to most aspects of age discrimination is based on education and attitudinal
change. In doing so, it is critical that the legislation not establish barriers
to such positive developments, for example, by restricting employment opportunities
for older Australians by imposing unnecessary costs and inflexibility on employers
acting in good faith."
2.10 It appears that the
Explanatory Memorandum is suggesting that the dominant reason test will enhance
the employment opportunities of older workers. The Commission, in its administration
of the RDA, SDA and DDA, is not aware of any evidence that the 'one or more
reasons' test contained in those pieces of legislation has led to a restriction
of employment opportunities for people for whom the legislation provides protection
against discrimination and it is not clear why the ground of age would be any
different. Rather than reducing discrimination against older people in the workforce,
the adoption of the dominant reason test could have the effect of restricting
the ability of a person to assert their right to be treated on a non-discriminatory
basis under the new legislation and would potentially undermine the positive
benefits that the legislation otherwise introduces. The Commission also considers
that the concerns in relation to imposing 'unnecessary costs and inflexibility'
on employers would seem to be addressed by the broad range of exemptions and
exceptions contained in the Bill.
2.11 The Commission agrees
that educational and attitudinal changes are important benefits that will flow
from having enforceable federal age discrimination legislation. However, adoption
of the stricter dominant reason test may undermine these important objectives
if in fact the test has the effect of conveying a message that issues of age
discrimination are not considered as important as issues of race, sex or disability
discrimination. The Commission also considers that this test will undermine
one of the primary objects of the Bill [23] which is to eliminate,
as far as possible, discrimination against people on the ground of age in specified
areas of public life. The practical effect of this test will be that service
providers and employers will be able to make distinctions on the basis of age
as long as the age of the person is not the dominant reason for the less favourable
treatment.
2.12 In light of the matters
outlined above, the Commission opposes the introduction of a dominant reason
test into the new legislation. The Commission particularly notes that the test
was removed from the RDA some years ago, it will be the only piece of anti-discrimination
legislation in Australia that contains such a test, and it will undermine the
important objectives of the legislation. In the Commission's view, the legislation
should reflect the same test as contained in current federal anti-discrimination
legislation.
3. EXEMPTION FOR POSITIVE AGE DISCRIMINATION
3.1 Clause 33 of the
Bill provides:"This Part does not
make it unlawful for a person to discriminate against another person, on the
ground of the other person's age, by an act that is consistent with the purposes
of this Act, if:(a) the act provides
a bona fide benefit to persons of a particular age; orExample: This paragraph
would cover a hairdresser giving a discount to a person holding a Seniors
Card or a similar card, because giving the discount is an act that provides
a bona fide benefit to older persons.(b) the act is intended
to meet a need that arises out of the age of persons of a particular age;
orExample: Young people
often have a greater need for welfare services (including information, support
and referral) than other people. This paragraph would therefore cover the
provision of welfare services to young homeless people, because such services
are intended to meet a need arising out of the age of such people.(c) the act is intended
to reduce a disadvantage experienced by people of a particular age.Example: Older people
are often more disadvantaged by retrenchment than are other people. This
paragraph would therefore cover the provision of additional notice entitlements
for older workers, because such entitlements are intended to reduce a disadvantage
experienced by older people."
3.2 The Commission supports
the inclusion of a provision in the Bill that provides for positive age discrimination
in order to reduce disadvantage or to meet the special needs of a particular
age group. The Commission considers that this should be largely consistent with
the special measures provisions that currently exist in the RDA, [24]
SDA [25] and DDA. [26]
3.3 The Commission notes,
however, that clause 33 extends the concept beyond the provision in the other
federal anti-discrimination statutes, in which the primary purposes of the special
measures provisions is the achievement of substantive equality. The relevant
provisions in the RDA and SDA also provide that the taking of special measures
is not authorised once the purpose for which they were implemented is achieved.
It is also noted that the DDA in s 45 requires that an act be 'reasonably intended'
to address a special need or disadvantage, as opposed to clause 33 which has
no requirement of reasonableness.
3.4 The Commission is of
the view that any extension of the current understanding of a special measures
provision may undermine the objective of the proposed legislation to eliminate
age discrimination. The Commission notes that what might be considered to be
a 'bona fide benefit' to a person of a particular age could constitute less
favourable treatment in relation to a person who is not provided with the benefit
because they are not of that age. However, the operation of clause 33 would
mean that this would not constitute unlawful discrimination under the Bill.
If clause 33 remains in its current form, it is suggested that consideration
be given to some form of limitation being included, such as the reasonableness
of the measure.
4. AGE DISCRIMINATION AND DISABILITY
DISCRIMINATION
4.1 Clause 6 of the Bill
provides:
"For the purposes of
this Act, a reference to discrimination against a person on the ground of
the person's age is taken not to include a reference to discrimination against
a person on the ground of a disability of the person (within the meaning of
the Disability Discrimination Act 1992)."
4.2 The Commission appreciates
the Government's concern expressed in the Explanatory Memorandum that the Bill
should not create an alternative avenue for people whose complaints may not
be successful under the DDA due to the existence of Standards [27]
or the defence of unjustifiable hardship and acknowledges the statement in the
Explanatory Memorandum that "the Bill is not designed to limit a person's rights
if they are the subject of discrimination'. The Commission, however, is not
convinced that the proposed legislation needs to include specific provisions
to deal with this. The Commission notes that such provisions are not included
in any other federal, State or Territory legislation
4.3 The Commission is of
the opinion that any potential overlap between grounds of discrimination covered
by federal anti-discrimination law can be dealt with through the Commission's
complaint assessment process and through the termination grounds which are found
in s 46PH of the HREOC Act. [28]
4.4 Section 46P of the
HREOC Act outlines the threshold jurisdictional issues that need to be satisfied
for correspondence to be accepted as a complaint under the Commonwealth anti-discrimination
law administered by the Commission. This includes a requirement that the correspondence
alleges unlawful discrimination. [29] If correspondence received
by the Commission alleged disability discrimination and did not allege age discrimination,
or express a sense of grievance based on age, then it would be handled as a
complaint alleging a breach of the DDA only and would not be handled as a complaint
of unlawful age discrimination.
4.5 However, where the
requirements of section 46P are met and the person has evinced a complaint of
unlawful age discrimination, issues relating to whether the less favourable
treatment is because of a person's age or his or her disability would be dealt
with in a practical manner through the Commission's investigation processes
and the President's power to terminate complaints.
4.6 For example, if a person
made a complaint alleging age discrimination, but the complaint was in fact
only about their disability, it would be likely to be difficult for that person
to successfully make out a complaint of direct age discrimination. In such a
case, difficulties would arise in the complainant being able to establish a
sufficient connection between his or her age and the alleged less favourable
treatment and, in these circumstances, the President has the power to terminate
an inquiry into a complaint on the basis that he is satisfied that it is lacking
in substance. [30] Difficulties could also arise in relation
to making out a complaint of indirect age discrimination. Firstly, a complainant
would need to establish that the requirement or condition disadvantaged people
of the complainant's age group and, secondly, issues of reasonableness would
also need to be considered. The factors considered in assessing the reasonableness
of the requirement or condition would be similar to those examined in assessing
issues of unjustifiable hardship under the DDA and could include considerations
of Standards under the DDA.
4.7 In relation to the
issue of potential overlap between the grounds of disability and age discrimination,
the Commission notes that people's experiences of discrimination are often multi-dimensional
and quite complex. For example, a person might complain to the Commission because
they believe they were selected for redundancy on the basis of both their age
and their disability or a person may complain that their race and sex were reasons
why they were refused employment. The Commission regularly receives complaints
alleging multiple grounds of discrimination under the different federal anti-discrimination
legislation and is able to effectively deal with these matters through the current
legislative scheme and existing complaint handling processes.
4.8 In the Commission's
view, it is important that the various pieces of federal anti-discrimination
legislation can operate together in a way which enables complaints to be considered
as a whole and any overlap between the various grounds of discrimination to
be fully and properly considered.
5. EXEMPTION RELATING TO DIRECT
COMPLIANCE WITH LAWS, ORDERS OF COURTS ETC
5.1 Clause 39 of the Bill
exempts in a number of ways certain federal and State and Territory laws, court
orders, and industrial awards and agreements.
5.2 Clause 39 of the Bill
provides a general exemption as follows:
Acts, regulations
and instruments mentioned in Schedule 1(1) This Part does not
make unlawful anything done by a person in direct compliance with:(a) an Act mentioned
in Schedule 1; or
(b) a regulation or any other instrument mentioned in Schedule 1.Other Acts or regulations
- 2 year exemption period(2) This Part does not
make unlawful anything done by a person, in direct compliance with any other
Commonwealth Act or regulation, during the period:(a) beginning on the
day on which this Act commences; and
(b) ending 2 years after that day.(3) To avoid doubt, subsection
(2) does not affect the operation of any other provision in this Division.State and Territory
Acts, regulations and instruments(4) This Part does not
make unlawful anything done by a person in direct compliance with:(a) an Act of a State
or Territory; or
(b) a regulation or any other instrument made under an Act of a State or
Territory.(5) Subsection (4) does
not apply in relation to an Act, regulation or other instrument of a State
or Territory if the Act, regulation or instrument is specified in regulations
made for the purposes of this subsection.(6) To avoid doubt, section
49A of the Acts Interpretation Act 1901 does not prevent a regulation
made for the purposes of subsection (5) from specifying an Act, regulation
or instrument as in force at a particular time or as in force from time to
time.Court orders
(7) This Part does not
make unlawful anything done by a person in direct compliance with an order
of a court.Workplace relations
(8) This Part does not
make unlawful anything done by a person in direct compliance with any of the
following:(a) an order or award
of a court or tribunal having power to fix minimum wages;
(b) a certified agreement (within the meaning of the Workplace Relations
Act 1996);
(c) an Australian workplace agreement (within the meaning of the Workplace
Relations Act 1996).
5.3 General response
5.3.1 The Commission appreciates
that specific exemptions may be appropriate for certain Commonwealth legislation
(such as that set out in clause 41 of the Bill) that implements major social
policy programs and where that legislation is subject to scrutiny and review
by the federal Parliament on a regular basis.
5.3.2 The Commission notes
that the exemptions in clause 39(1) apply only to those acts done in direct
compliance with the legislation listed in Schedule 1 to the Bill. [31]
The Commission makes specific comments about certain legislation contained in
Schedule 1 at paragraph 5.4 below.
5.3.3 The Commission also
notes the proposal in clause 39(2) to exempt acts done in direct compliance
with Commonwealth laws not otherwise included in Schedule 1 to the Bill. The
Commission supports the approach taken in the Bill that these exemptions be
reviewed two years after the commencement of the Bill. Such a period of review
will allow sufficient time for Commonwealth laws to become compliant with the
age discrimination legislation or seek permanent exemption from the federal
Parliament.
5.3.4 In relation to the
exemption in clause 39(4) concerning State and Territory Acts, regulations and
instruments, the Commission notes the potential complexity of the interaction
between the proposed federal age discrimination legislation, general State and
Territory laws which may contain age based criteria (for example laws in relation
to liquor licensing, tobacco, driving licences etc) and State and Territory
anti-discrimination laws, most of which exempt any act that is done in compliance
with the relevant State or Territory legislation. In light of this, the Commission
does not oppose the proposal that the age discrimination legislation include
a general exemption for acts done in order to comply with State or Territory
laws, but welcomes the inclusion of s 39(5) which enables the federal Parliament
to prescribe exceptions to the exemption should it consider it appropriate to
do so given the reach that State and Territory laws have on public life.
5.4 Defence Act
legislation
5.4.1 As outlined in the
Introduction above, since 1990 the Commission has had the legislative function
of inquiring into and attempting to conciliate complaints alleging age discrimination
in employment and occupation. Of those matters that have led to a report being
tabled in the federal Parliament containing a finding that an act or practice
constitutes discrimination, [32] a number have involved the
Australian Defence Force (ADF) as the respondent [33] and,
in some cases, have led to proceedings in the Federal Court. [34]
5.4.2 Schedule 1 to the
Bill also includes Australian Defence Force (ADF) legislation as well as Defence
Instructions in relation to the Navy, Army and Air Force. However, the legislation
and subsidiary instruments relating to the ADF provide the basis for employment
of its members. There are varying age requirements in each of the different
arms of the ADF in relation to matters such as recruitment to certain positions,
transfers and promotion. Ages for compulsory retirement also vary depending
on factors such as rank and position.
5.4.3 The Commission is
of the view that the legislation relating to the ADF is in a very different
position to that of other Commonwealth laws and programs, such as social security
legislation, which deal primarily with the provision of, and access to, public
services. The Commission submits that, except so far as it relates to minimum
age for enlistment and cadet schemes, the ADF should be subject to the same
provisions in the proposed Bill as other employers, including having available
to it the inherent requirement defence which would ensure that the use of age
as an arbitrary proxy for ability would be avoided.
5.4.4 The Commission is
therefore opposed to the application of any exemption (permanent or temporary)
to defence force legislation and subsidiary instruments and reaffirms the recommendations
it made concerning defence force legislation in the Age Matters report [35]
as follows:
- All age-based requirements
for recruitment into the defence forces should be abolished and alternative
non-discriminatory tests of applicant suitability should be substituted. - All defence force regulations
that specify age limits for positions and/or training or promotional opportunities
should be amended to ensure that selection is based on the inherent requirements
of the position or opportunity rather than age. - Defence force legislation
and regulations that specify compulsory retirement should be amended to abolish
age based retirement.
6. Definitions of direct and indirect
discrimination
6.1 The Commission welcomes
the inclusion of definitions of both direct and indirect age discrimination
in clauses 14 and 15 of the Bill. Direct and indirect discrimination are key
concepts and broadly accepted legal principles in anti-discrimination law. This
approach to defining discrimination is consistent with the approach taken in
federal, State and Territory anti-discrimination law. Defining age discrimination
in this way will provide individuals and organisations with clarity regarding
their rights and responsibilities under the legislation.
6.2 The Commission also
welcomes the way in which indirect age discrimination has been defined in clause
15 of the Bill. Clause 15 generally takes the form of the indirect discrimination
provisions in the SDA [36] which are both simpler to understand
and apply and broader in their coverage than other definitions in federal anti-discrimination
law. Clause 15(2) of the Bill, like s 7C of the SDA, also specifies that the
burden of proof in establishing that a condition, requirement or practice is
reasonable in the circumstances lies with the alleged discriminator. As the
Commission noted in its response to the Government's Information Paper, [37]
placing the onus of proof on the respondent is logical as information concerning
the reasonableness of the particular condition, requirement or practice would
generally be in the possession of the respondent.
6.3 However, the Commission
notes that, unlike s 7B(2) of the SDA, the Bill does not contain any reference
to the matters to be taken into account when determining whether a condition,
requirement or practice is reasonable in the circumstances. [38]
The Commission is of the view that the inclusion of a similar provision to s7B(2)
of the SDA in the Bill will not only provide important guidance for parties
to a complaint, but also assist the Commission in the administration of the
legislation.
7. Extension of concept of age discrimination
to include relatives and associates
7.1 During discussions
of the Core Consultative Group, the issue of whether discrimination of the ground
of age should be extended to cover discrimination on the basis of a person's
relative or associate was raised.
7.2 Under the DDA it is
unlawful to discriminate against an associate of a person with a disability
in certain areas of public life, for example employment, education, access to
premises and the provision of goods, services and facilities. [39]
The RDA also contains provisions that make it unlawful for a person to discriminate
against another person in particular areas of public life because of the race,
colour or national or ethnic origin of a relative or associate. [40]
Accordingly, the prohibition of discrimination against relatives and associates
has been an aspect of federal anti-discrimination law since 1975 and such provisions
were included in the most recent piece of federal anti-discrimination law, being
the DDA. In the Commission's experience, the inclusion of protections in the
legislation for associates and relatives has been largely uncontroversial and
has not resulted in a large number of complaints being made on this basis.
7.3 In these circumstances,
the Commission is of the view that discrimination on the ground of age in clause
14 of the Bill should be extended to cover discrimination on the basis of the
age of a person's relative or associate.
8. Exemption for youth wages
8.1 The Commission does
not support the inclusion of a specific, permanent exemption in clause 25 of
the Bill in relation to youth wages. The Commission considers that this issue
can be dealt with through an appropriate special measures provision or exemptions
in relation to acts done in direct compliance with an award, industrial agreement
or Commonwealth legislation.
8.2 The Discrimination
(Employment and Occupation) Convention 1958 (ILO 111), which is scheduled to
the HREOC Act, provides for special measures in the area of employment. It states:
1. Special measures of
protection or assistance provided for in other Conventions or Recommendations
adopted by the International Labour Conference shall not be deemed to be discrimination.2. Any member may, after
consultation with representative employers' and workers' organisations, where
such exist, determine that other special measures designed to meet the particular
requirements of persons who, for reasons such as sex, age, disablement, family
responsibilities or social or cultural status, are recognised to require special
protection or assistance, shall not be deemed to be discriminatory.
8.3 Special measure provisions
are preferred because they are more flexible and targeted than specific fixed
exemptions. They ensure that only those programs and policies that are designed
and targeted to address disadvantage by a particular group are exempt from the
operation of the legislation. Once the disadvantage that the program or policy
has been set up to address has been remedied, then the program or policy would
no longer be a special measure and exempt from the operation of the age discrimination
legislation. In Age Matters, the Commission recommended that a number
of special measures aimed at mature age-job seekers and older workers either
be continued or implemented.
8.4 It is also noted that
the proposed Bill provides the Commission with the power to grant exemptions.
Organisations and departments delivering a program which they consider to be
a special measure could apply to the Commission to have it exempt from the operation
of age discrimination legislation. [41]
8.5 The Commission notes
that junior rates of pay are usually contained in industrial awards and agreements
and any exemption in relation to acts done in direct compliance with awards
or industrial agreements would cover this issue.
8.6 In Age Matters,
the Commission also examined in some detail the issue of youth wages. It found
that:
"Determining the acceptability
or otherwise of junior rates has been difficult because of the lack of unequivocal
evidence as to the effect their abolition would have on the youth labour market
overall. If there is no significant detrimental effect, the differences cannot
be justified. The evidence, however, is inconclusive." [42]
8.7 The Commission recommended
that the federal government should:
(a) encourage and work
with industrial parties to develop and trial a full range of employment, training
and wage options for young people;(b) amend the Workplace
Relations Act 1996 to require the Australian Industrial Relations Commission
to undertake a further review of junior rates and feasible non-discriminatory
alternatives within a reasonable period; and(c) require the Australian
Industrial Relations Commission in its considerations of junior rates on a
case by case basis to- consult widely with
young people and their representative organisations
- base its assessment on whether junior rates are proportional to the objective
of increasing young people's access to full-time employment and are the
most effective and least discriminatory means to this end. [43]
8.8 The Commission considers
that further consultation and research is needed on the issue of youth wages,
and whether there is a causal relationship between youth wages and increased
levels of employment for young people. In the meantime, it is the Commission's
view that these issues are better dealt with through positive targeted measures
rather than the introduction of a blanket exemption.
9. Exemption in relation to Migration
Act
9.1 The Commission notes
that clause 43 of the Bill provides an exemption for "anything done by a person
in relation to the administration of the Migration Act 1958 (Cth) ('Migration
Act'), Immigration (Guardianship of Children) Act 1946, and their
regulations". To the extent that that proposal seeks to exempt not only acts
done in direct compliance with a law but also discretionary acts not mandated
by law, then the Commission expressly disagrees with that aspect of the proposal.
Inclusion of discretionary acts in the exemption would be inconsistent with
the general thrust of other provisions in the Bill in relation to Commonwealth
laws and programs. It would have the potential to remove all action taken under
the Migration Act and its regulations, that is, both those acts done
in order to comply with a law and those discretionary acts done to administer
the law. In any event, discretionary acts could be permitted if they met the
tests set out in other exceptions, such as the proposed exception for positive
discrimination.
1. Anti-Discrimination
Act 1977 (NSW) Part 4G; Equal Opportunity Act 1984 (SA) s 85A;
Equal Opportunity Act 1984 (WA) Part IVB; Discrimination Act 1991
(ACT) s 7(1)(ib); Equal Opportunity Act 1995 (Vic) s 6(a); Anti-Discrimination
Act 1998 (Tas) s 16(b); Anti-Discrimination Act 1991 (QLD) s 7(1)(f);
Anti-Discrimination Act 1992 (NT) s 19(1)(d).
2. Section
4(a)(i) of the Human Rights and Equal Opportunity Commission Regulations
1989.
4. Report
No.1- Compulsory age retirement (1996); Report No.2 - Redundancy arrangements
and age discrimination (1997); Report No.4 - Age discrimination in trade union
membership (1997); Report No.8 - Age discrimination in the Australian Defence
Force (2000); Report No.11 - Discrimination on the ground of age (2002); Report
No.14 - Report of an inquiry into a complaint by Mr Andrew Hamilton of age discrimination
in the Australian Defence Force.
6. Report
No.1 - Compulsory Retirement Age (1996); Report No.2 - Redundancy arrangements
and age discrimination (1997).
7. Section
18 RDA, s 8 SDA and s 10 DDA.
8. This
Act came into operation on 22 December 1990.
9. Commonwealth,
Parliamentary Debates, House of Representatives, 12 November 1990,
3768 (Mr Melham, Member for Banks).
10. Commonwealth,
Parliamentary Debates, House of Representatives, 12 November 1990,
3764 (Mr Peacock, Member for Kooyong).
12. Commonwealth,
Parliamentary Debates, House of Representatives, 12 November 1990, 3767 (Mr
Peacock, Member for Kooyong).
15. Commonwealth,
Parliamentary Debates, House of Representatives, 12 November 1990,
3766 (Mr Peacock, Member for Kooyong).
17. It
is also noted that the term 'dominant' is used in different contexts, such as
the area of legal professional privilege. Its meaning and the practical difficulties
in applying a dominant purpose test, especially when a court is faced with dual
purposes, has led to much discussion in the case law. See, for example, Esso
Australian Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49;
Sparnon v Apand (1996) 68 FCR 322; 138 ALR 735.
18. Section
4A Anti-Discrimination Act 1977 (NSW); s 5 Equal Opportunity Act
1984 (WA); s 14(3)(a) Anti-Discrimination Act 1998 (Tas); s 4(3)
Discrimination Act 1991 (ACT); Anti-Discrimination Act 1992 (NT).
19. Section
8(2) Equal Opportunity Act 1995 (Vic); s 10(4) Anti-Discrimination
Act 1991 (Qld); s 6(2) Equal Opportunity Act 1984 (SA).
20. Oyekanmi
v National Forge Operations Pty Ltd and Anor (1996) 92-797 at 78,896; Foley
v Shop, Distributive and Allied Employees' Association (1999) VCAT, No.
62 of 1998 at 8.
21. Yfantidis
v Jones and Flinders Medical Centre (1993) 61 SASR 458, per Debelle J at
[47].
22. See,
for example, comments made by Commissioner McEvoy in Wu v Cohen & Express
Embroidery Pty Ltd (unreported) HREOC, 10 October 2000 at p 15.
23. See
clause 3(a) of the Bill.
28. Grounds
of termination as set out in s 46PH of the HREOC Act include that the President
is satisfied that: the alleged discrimination is not unlawful discrimination;
the complaint was trivial, vexatious, misconceived or lacking in substance;
the subject matter of the complaint has been adequately dealt with; some other
more appropriate remedy is available; or that the subject matter of the complaint
has already been dealt with by the Commission or by another statutory authority.
29. It
is noted that Schedule 1 of the Age Discrimination (Consequential Provisions)
Bill 2003 provides for an amendment to the HREOC Act to include in the definition
of 'unlawful discrimination' in s 3(1) of that Act those acts, omissions or
practices that are unlawful under Part 4 of the Age Discrimination Act 2003.
30. Pursuant
to s 46PH(1)(c) of the HREOC Act.
31. It
is also noted that some of the legislation listed in Schedule 1 to the Bill
appears not to have formed part of the discussions of the Core Consultative
Group and Working Groups.
33. Report
No.8 - Age discrimination in the Australian Defence Force (2000) and Report
No.14 - Report of an inquiry into a complaint by Mr Andrew Hamilton of age discrimination
in the Australian Defence Force.
34. See,
for example, Commonwealth v Bradley (1999) 95 FCR 218 and Commonwealth
of Australia v Human Rights and Equal Opportunity Commission and Hamilton
(2001) 180 ALR 635.
35. Recommendation
4 at p 110.
36. See
ss 5(2), 6(2) and 7(2) of the SDA.
37. At
paragraph 2.1 of the response to the Information Paper.
38.
Section 7B provides that these matters include (a) the nature and extent of
the disadvantage resulting from the imposition, or proposed imposition, of the
condition, requirement or practice; (b) the feasibility of overcoming or mitigating
the disadvantage; and (c) whether the disadvantage is proportionate to the result
sought by the person who imposes, or proposes to impose, the condition, requirement
or practice.
39. See
ss 15 to 29 of the DDA.
40. See
ss 11,12, 13 and 15 of the RDA.
41. Examples
of some of the exemption applications considered to date by the Commission under
the SDA and DDA can be found at the following websites: http://www.humanrights.gov.au/legal/sda_exemption.html
and http://www.humanrights.gov.au/disability_rights/exemptions/exemptions.html.
Last
updated 9 September 2003.