Age Discrimination Legislation

Response to Information Paper Containing Proposals for Commonwealth Age Discrimination Legislation, December 2002

Human Rights and Equal Opportunity Commission, 12 February 2003

1. Introduction2. Discrimination3. Prohibitions on age discrimination4. Age discrimination in work5. Age discrimination in relation to goods, services and facilities6. Age discrimination in relation to Commonwealth laws and programs7. Age discrimination in other areas8. Other discrimination issues9. General exemptions10. Offences11. Human Rights and Equal Opportunity Commission functions12. Issues relating to States and Territories

1. INTRODUCTION

The Human Rights and Equal Opportunity Commission (Commission) welcomes the Federal Government's proposal to make discrimination based on age unlawful.

The concept of age discrimination is not new. All State and Territories have, for some years, made discrimination based on 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 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]

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]

The Commission appreciates the government facilitating the meetings of the Core Consultative Group (CCG) 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 our race or ethnic background, age is an ever-changing personal characteristic and what we may call for from our legislators in our youth will differ vastly from our concerns in middle and later age. The balance between these often competing interests is a complex matter and one that our legislators must face when considering all laws that propose to contain age as a criterion. The Commission is mindful of this complexity in making its response to this proposal.

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.

Generally, the Commission supports the proposals outlined in the Information Paper (IP). However, the Commission is of the view that specific comment is required in relation to some areas. These comments are summarised below and expanded on in the body of this document.

• Direct and indirect discrimination The Commission considers that the definition of indirect age discrimination utilised in the proposed age discrimination legislation should take the form of the indirect discrimination provisions contained in the SDA. The Commission considers that this definition is both simpler to understand and apply and is broader in its coverage than other definitions in Federal anti-discrimination law.
• Relatives and associates As raised in discussions of the CCG, the Commission considers that discrimination on the ground of age should be extended to cover discrimination on the basis of the age of a person's relative or associate. The Commission notes that such provisions are included in the other Federal anti-discrimination law and in State and Territory laws. For example, 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.
• Intersectionality 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 the DDA and age discrimination legislation where they believe that their age and disability are two distinct reasons for the alleged less favourable treatment.
• Prohibitions of age discrimination - areas of public life The Commission considers that the areas in which age discrimination is made unlawful should be consistent with those in other Federal anti-discrimination law and therefore recommends that, subject to constitutional considerations, the areas of 'clubs', 'incorporated associations' and 'sport' also be included.
• Definition of 'employment' In its complaint handling role, the Commission has become aware of new and emerging employment relationships which appear to fall outside the definitions of 'employment', 'contract worker' and 'employee' contained in Federal anti-discrimination law. The Commission considers that in defining 'employment' for the purposes of age discrimination legislation, attention should be directed to ensuring that the definition is sufficiently broad to ensure that these emerging forms of employment relationships can be appropriately considered.
• Unpaid work The utilisation of unpaid/volunteer work in public life is now well established and recognised throughout the community. The Commission considers that provision should be made in the proposed age discrimination legislation to cover unpaid/volunteer work situations where this is undertaken in the public arena or where the unpaid/volunteer work may give rise to an opportunity for future employment. Currently under the HREOC Act, an unpaid worker can make a complaint to the Commission if they believe that they have been discriminated against on the basis of their age when undertaking work in order to pursue a particular occupation or to gain employment. The Commission considers that the proposed age legislation should not erode the breadth of the existing coverage in this respect.
• Youth wages, job training and younger workers The Commission does not support the inclusion of specific permanent exemptions in age discrimination legislation for youth wages, job training programs or Government work experience or community work programs. The Commission considers that these issues can be dealt with through an appropriate special measures provision or an exemption for acts done in direct compliance with an award, industrial agreement or Commonwealth legislation. The Commission notes the views expressed by young people in discussions of the CCG and working parties that youth wages should be tied to training and that the imposition of youth wages, although sometimes beneficial, did not have corresponding reductions in accommodation, travel and other living costs. The Commission considers that further consultation and research is needed on this issue before Youth Wages are specifically exempted from age discrimination legislation.
• Exemption for acts done in accordance with industrial awards and workplace agreements The Commission is of the view that the proposed exemption should be limited to acts done in compliance with the provisions of industrial awards and workplace agreements. This is consistent with the approach taken in other Federal anti-discrimination law. The Commission considers that an exemption which covers actions which are not directly pursuant to awards but are permitted by them would be far too broad and would undermine the effective operation of the age legislation.
• Exemption for credit The Commission does not support an exemption for age discrimination in the provision of credit or financial services. The Commission is not persuaded that age is central to assessments of the ability to service various forms as debt, as opposed to criteria such as a person's income, savings, investments, credit history etc. The Commission also notes that none of the other Federal anti-discrimination legislation includes an exemption in relation to the provision of credit or financial services.
• Commonwealth laws and programs The Commission considers that some legislation may be more appropriately exempt from the proposed law on a permanent basis where those areas of law are sufficiently reviewed and scrutinized by the Parliament on a regular basis. The Commission considers that all other Commonwealth laws (apart from those relating to the Australian Defence Force) be given a two year sunset period to become compliant with the proposed age discrimination law or else seek permanent exemption from the Parliament. A similar approach was taken when the DDA was enacted.
• Australian Defence Force The Commission does not consider that defence force legislation and subsidiary instruments should be 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.
• Harassment The Commission submits that the proposed age legislation should prohibit harassment on the basis of age. This is consistent with the approach taken in other Commonwealth anti-discrimination law.
• Cause, instruct, induce etc an unlawful act The Commission submits that the proposed age legislation should take the same approach as that taken under the DDA and the HREOC Act to acts that can be described as "incitement", that is, to make such conduct an offence as well as unlawful.

• 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 the view that the Government should be cautious that any extension of the current understanding of a special measures provision does not undermine the objective of the proposed legislation to eliminate age discrimination.
• Exemptions for acts done to comply with State laws The Commission notes that notwithstanding that age discrimination is made unlawful through all States and Territories, nearly all states and territories exempt any act that is done in compliance with State or Territory legislation. [7] The Commission considers that the Commonwealth should have the ability to prescribe relevant State laws, should it consider it appropriate to do so, given the reach State and Territory laws have on the community and public life.
• Exemptions for religious purposes The Commission submits that if an exemption in relation to religious bodies was ultimately considered necessary, it should only apply where it is necessary to avoid injury to the religious susceptibilities of adherents to the religion. In the Commission's view, any such exemption should not be available in relation to the provision of public services by religious bodies such as employment, welfare and health services.
• Exemptions for voluntary bodies The Commission opposes the inclusion of an exemption in relation to voluntary bodies. Such an exemption is not included in the RDA or the DDA, the latter being the most recently drafted piece of federal anti discrimination legislation. In addition, such an exemption is included in only two pieces of State anti-discrimination legislation. [8] The Commission has found that the inclusion of such an exemption in the SDA limits the ability of people to make complaints of alleged acts unlawful discrimination in an important area of public life.
• Victimisation The Commission supports the proposal for victimisation to be made an offence under the age discrimination legislation. However, it submits that conduct amounting to victimisation under the proposed age discrimination legislation should also be made unlawful discrimination under the HREOC Act. [9] Not only would this ensure consistency with other federal anti-discrimination law, but would also act as an additional deterrent to potential acts of victimisation.
• Advertising The Commission supports the proposal to make it an offence under the proposed age discrimination legislation to advertise in such a way that indicates an intention to unlawfully discriminate on the basis of age. This would be consistent with other Federal anti-discrimination legislation. [10] However, the Commission also notes that such advertising amounts to unlawful conduct under the RDA [11] and can also lead to a complaint to the Commission under s 46P of the HREOC Act if an intention to unlawfully discriminate on the basis of disability is shown. [12] The Commission suggests that the latter approach should also be taken in respect of age. This would ensure consistency with the most recent piece of federal anti-discrimination legislation in relation to this issue. It may be appropriate for guidelines to be developed in order to provide guidance in this area.

The Commission considers that it is the appropriate organisation to administer the proposed legislation and that it be given the necessary functions [13] to conduct inquiries into complaints and to endeavour to settle them through conciliation; conduct public inquiries and education programmes; issue guidelines; examine enactments; intervene in court proceedings that involve age discrimination issues and to act in an amicus curiae role [14] in matters that may proceed to determination in the Courts.

2. DISCRIMINATION

2.1 Direct and indirect discrimination

The Commission welcomes the Government's proposal to define age discrimination in a way that includes both direct and indirect discrimination. 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.

It is noted that the IP does not propose a specific definition of indirect age discrimination to be included in the proposed age discrimination legislation. The Commission considers this definition should take the form of the indirect discrimination provisions contained in the SDA.

The definition of indirect discrimination contained in the SDA is both simpler to understand and apply and broader in its coverage than other definitions in Federal law. For example, s 5 of the SDA defines indirect sex discrimination as occurring when a person imposes, or proposes to impose, a condition, requirement or practice that has or is likely to have the effect of disadvantaging people of the same sex as the aggrieved person. Section 7B of the SDA provides that a respondent does not discriminate against a person if the condition, requirement or practice is reasonable in the circumstances. It also lists the matters to be taken into account when determining whether a condition, requirement or practice is reasonable in the circumstances. The Commission is of the view that the inclusion of a similar provision in the proposed age discrimination legislation will not only provide important guidance for parties to a complaint, but also assist the Commission in the administration of the legislation.

Additionally, the Commission recommends that in relation to indirect age discrimination, the legislation should specify that the burden of proof in establishing that a condition, requirement or practice is reasonable in the circumstances lies with the person who allegedly imposed the condition, requirement or practice. This is consistent with s 7C of the SDA. 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. The Commission notes that while in relation to indirect discrimination under the DDA and the RDA, the complainant has the onus to demonstrate that a condition or requirement is not reasonable, in practice, when investigating such complaints, the Commission generally seeks submissions from respondents on the reasons for, and the reasonableness of, the condition, requirement or practice.

2.2 Other definitional issues

2.2.1 Characteristics

The Commission supports the proposal to define the ground of age discrimination to include a characteristic that is 'generally imputed to' and a characteristic that 'generally appertains to' a person of that age.

2.2.2 Age or age group

The Commission agrees with the proposal that the proposed legislation include 'age group' within the ground of age.

2.2.3 Relatives and associates

The Commission considers that discrimination on the ground of age should be extended to cover discrimination on the basis of the age of a person's relative or associate.

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. [15] 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. [16] 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. 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.

2.3 The intersection of age discrimination and disability discrimination

In relation to this issue, 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 is of the view that 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 intersectionalities between the various grounds of discrimination to be fully and properly considered.

While the Commission appreciates the Government's concern that the proposed age discrimination legislation should not create an alternative avenue for people whose complaints may not be successful under the DDA due to the existence of Standards [17] or the defence of unjustifiable hardship, 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 opinion that any potential overlap between grounds of discrimination covered by different Federal anti-discrimination law can be dealt with through the Commission's complaint assessment and election of jurisdiction processes and through the termination grounds which are found in s 46PH of the HREOC Act. [18]

The Commission considers that, if a person made a complaint alleging age discrimination, but the complaint is really only about their disability, it is likely to be difficult for them to successfully make out a complaint of direct age discrimination. Difficulties would arise in the complainant being able to establish a sufficient connection between his or her age and the alleged less favourable treatment. Additionally, problems would 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.

If the Government considers it necessary to include legislative provisions dealing with any overlap between age and disability discrimination, the Commission submits that it is essential that these provisions do not prevent people from making a complaint under the DDA and age discrimination legislation where they believe that their age and disability are two distinct reasons for the alleged less favourable treatment.

3. PROHIBITIONS ON AGE DISCRIMINATION

Currently the HREOC Act covers discrimination on the ground of age only in the area of employment or occupation and does not make age discrimination unlawful. The Commission welcomes the fact that the proposed age legislation will make discrimination in employment unlawful. The Commission also welcomes the extension of the prohibition of age discrimination to a broad range of areas of public life. However, the Commission considers that the areas of unlawful age discrimination should be consistent with those in other Federal anti-discrimination law and therefore recommends that, subject to constitutional considerations, the areas of 'clubs', 'incorporated associated' and 'sport' also be included. These areas of public life are of great importance to many Australians.

4. AGE DISCRIMINATION IN WORK

4.1 Prohibition of age discrimination

The Commission agrees that the prohibition on age discrimination in the area of work should cover applicants and employees, commission agents, contract workers, partnerships, industrial organisations, qualifying bodies and employment agencies in a similar manner to coverage in existing Federal, State and Territory legislation.

4.2 Definition of 'employment'

The Commission is not opposed to the proposal to define employment consistently with other Federal anti-discrimination law.

However, through its handling of complaints under the SDA, the Commission has become aware of an emerging number of people who, although in 'employment like' relationships, appear to fall outside of the definitions of employment, contract worker and employee contained in the SDA. Although a person may work at or out of the workplace of a principal on a regular and systematic basis, he or she will not come within the definition of 'contract worker' as they have a contract directly with the principal/organisation. [19] Also, due to the nature of their relationship, they may not clearly come within the definition of an 'employee'.

Accordingly, the Commission considers that in defining employment for the purposes of the proposed age discrimination legislation, attention should be directed to new and emerging forms of work and employment relationships, and steps should be taken to ensure that people who are in 'employment-like' relationships are appropriately protected by the legislation.

4.3 Unpaid work

As noted previously, the HREOC Act already covers discrimination on the basis of age in the area of employment or occupation. This definition of discrimination is based on that contained in the Discrimination (Employment and Occupation) Convention 1958 (ILO111). 'Discrimination' is defined in s 3 of the HREOC Act as:

"(a) any distinction, exclusion or preference …1!.that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and

(b) any other distinction, exclusion or preference that:

(i) has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and

(ii) has been declared by the regulations to constitute discrimination for the purposes of this Act;…"

Therefore, under the HREOC Act, a person can complain to the Commission about any treatment that has nullified or impaired their equality of opportunity in employment or in pursuing an occupation. This provision covers unpaid workers if they are undertaking work in order to pursue a particular occupation or to gain employment.

The Commission also notes that unpaid work is increasing in incidence and being used more broadly in order to obtain the experience needed to enter the workforce or retrain for another profession or occupation. Accordingly, discrimination in relation to selection for unpaid work could have significant consequences on a person's ability to pursue a particular occupation or form of employment.

In drafting legislation prohibiting age discrimination, the Commission is of the view that the breadth of the HREOC Act definition of discrimination should not be eroded and that the proposed legislation should also provide protection for people performing unpaid work where this work is performed in connection with an area of public life. The Commission does not consider it appropriate to extend the coverage of the legislation to unpaid work that is performed within the domestic sphere.

Volunteers make a significant contribution to the community in particular to the charitable and non-profit sector and the Commission submits that volunteers should also be covered by age discrimination legislation.

The Commission notes that protection for unpaid/volunteer work may best be achieved through the provision of a separate area of discrimination rather than by extending the definition of employment.

4.4 Contract workers

The Commission's position on this point is addressed at point 4.2 above.

4.5 Youth wages, job training and younger workers

The Commission does not support the inclusion of specific permanent exemptions in age discrimination legislation for youth wages, job training programs or participation in Government work experience or community work programs such as the 'Work for the Dole' scheme.

The Commission considers that these issues 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.

The 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.

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 Act. 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.

It is also noted that the proposed legislation 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.

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.

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." [20]

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. [21]

The Commission considers that further consultation and research is needed on the issue of youth wages before youth wages are specifically exempted from age discrimination legislation.

The Commission supports the proposal of establishing an information/advocacy service for younger workers.

4.6 Exemption for inherent requirements of the job

The Commission considers that it is appropriate to include a defence to unlawful age discrimination in the area of employment where a person, because of their age, is not able to carry out the inherent requirements of the particular employment or job. The inherent requirements defence is already contained within the definition of age discrimination in the HREOC Act. [22] The concept of inherent requirements is also a component of the defence available to employers under the DDA. [23]

While the Commission acknowledges that there may be particular jobs where age is an inherent requirement, it is recommended that specification in the legislation of situations where age is an inherent requirement should be kept to a minimum and limited to situations where it is clear that a person's age is critical to their ability to successfully perform the essential elements of the job. The Commission's preference is for these issues to be decided on a case by case basis.

4.7 Acts done in accordance with industrial awards and workplace agreements

The Commission supports the proposal that this exemption be limited to acts done in compliance with the provisions of industrial awards and workplace agreements. This is consistent with the approach taken in other Commonwealth anti-discrimination laws. For example, s 40 of the SDA exempts anything done by a person in direct compliance with an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment or a certified agreement (within the meaning of the Workplace Relations Act 1996 (Cth)). In those cases where actions are in direct compliance with an award or agreement, the Commission considers that it is appropriate that the legislation provide it with the power to refer discriminatory awards and agreements to the Australian Industrial Relations Commission.

The Commission considers that an exemption which covers actions which are not directly pursuant to awards but are permitted by them would be far too broad. An exemption of this nature would undermine the effective operation of age discrimination legislation and would remove from the anti-discrimination jurisdiction discretionary actions by employers that while permitted by an award or industrial agreement, may treat people unfairly on the basis of their age.

4.8 Vicarious liability

The Commission supports the inclusion of a vicarious liability provision consistent with those contained in the SDA, RDA and DDA. It is a cornerstone of anti-discrimination law that employers and principals are responsible for the actions of their employees or agents unless they can show that they took all reasonable steps to prevent the discrimination from occurring. This legal principle acknowledges the power that employers have in order to ensure behaviour that accords with society's expectations of fair and equitable treatment for all Australians.

4.9 Domestic employment

The Commission considers that it is appropriate to take an approach consistent with other anti-discrimination law and exempt the performance of domestic duties on the premises on which the employer resides.

5. AGE DISCRIMINATION IN RELATION TO GOODS, SERVICES AND FACILITIES

5.1 Prohibition of age discrimination

As stated under heading 3 above, the Commission welcomes the extension of the prohibition of age discrimination to a broad range of areas of public life, including the provision of goods, services and facilities.

In light of the beneficial nature of anti-discrimination legislation, the Commission is of the view that exceptions and exemptions from the operation of the age discrimination legislation should be kept to a minimum. However, the Commission accepts that certain exceptions and/or exemptions may be necessary in relation to certain goods and services, such as superannuation and insurance. These issues are discussed below.

5.2 Exemption for superannuation

The Commission accepts that because the overall purpose of superannuation is to promote better incomes in retirement and related purposes, age-related criteria forms a fundamental basis of superannuation policy and law. It is clear that any amendment of superannuation laws to remove age barriers is complex and potentially affects a range of other areas including social security, tax and other issues.

On the basis that age-related criteria are central to the Federal Government's policies concerning superannuation, and that there is ongoing review and adaptation of the superannuation system as outlined in 5.2.1 of the IP, the Commission does not oppose the proposal that the age discrimination legislation should provide an exemption in relation to superannuation schemes operating under Commonwealth superannuation and related legislation. The IP notes that the way in which this outcome will be achieved will be a drafting issue and notes two alternatives. The first alternative, that is, to list all relevant legislation to be exempted, would be a true exemption and would provide clarity in the application of the exemption to any alleged act of discrimination. The Commission notes, however, the comment that there are many and often changing pieces of legislation that would need to be listed in such an exemption. The Commission therefore supports the alternative approach suggested, that is, to exempt discriminatory actions that are needed to comply with, or obtain a benefit of, or avoid a penalty under, any other Act of the Commonwealth dealing with superannuation.

It is relevant to note that the Commission receives a number of enquiries concerning superannuation issues and the application of anti-discrimination law. If superannuation is ultimately exempted from the operation of the proposed age discrimination legislation, then any educational campaign should pay particular regard to this issue.

5.2.4 'Actuarial or statistical data', 'other data' and 'any other relevant factors'

The IP also suggests an exemption in relation to data issued in determining life insurance policies and pension payments linked to superannuation. The Commission supports the proposal at 5.2.4.1 that any such exemption should reflect the wording of the equivalent provision in s 46 of the DDA. The Commission notes again, however, that such a provision is, in the Commission's view, properly termed an exception because, as a matter of practice, if a complaint was lodged alleging unlawful discrimination in such a situation, the Commission would normally require the respondent to provide the actuarial or statistical data upon which it seeks to rely, and would then make an assessment of whether it was reasonable to rely on that data. Such a provision, therefore, would not automatically exempt such actions from the coverage of the age discrimination legislation.

In light of this matter of practice, the Commission supports the view expressed in 5.2.4.2 that it is not necessary to include in the age discrimination legislation a provision similar to s 49ZYS(2) of the Anti Discrimination Act (NSW) 1977 (which provides that the exemption for discrimination based on 'other data' or 'any other relevant factors' is available only if the sources on which the data is based and those relevant factors are disclosed to the Anti-Discrimination Tribunal).

5.2.6 Superannuation - issues for Indigenous people and people with disabilities

The Commission shares the concerns raised by the Aboriginal and Torres Strait Islander Commission concerning the implications for superannuation (and access to health services - see 5.6.3 of the IP) as a result of the poorer health status and shorter life expectancy of Indigenous people as compared with other Australians. The Commission notes that the solutions to these issues are complex and largely fall outside the scope of the proposed age discrimination legislation, but nevertheless urges the appropriate government departments to liaise in order to discuss the best way to deal with these issues. This may include, for example, introducing changes to superannuation legislation to enable Indigenous people to access their superannuation benefits at an earlier age without penalty.

It is also relevant to note that any measures that may taken in order to provide special access for Indigenous people to superannuation benefits (or health services) may constitute a special measure pursuant to s 8(1) of the RDA, or may warrant the application of the proposed positive discrimination provision in the age discrimination legislation (see 9.1 of the IP). In this regard, the Government may wish to consider including a specific reference to this issue in either the explanatory memorandum to the proposed age discrimination legislation or as a provision in the legislation itself. Such a reference could note that Aboriginal and Torres Strait Islanders currently experience significantly poorer health status and shorter life expectancy rates than other Australians; that this may have implications for the age at which they require access to superannuation, health services and other services; and that these may be relevant factors in determining whether a particular measure falls within the positive discrimination exemption in the proposed age discrimination legislation.

The Commission also notes, as stated in the IP, that similar issues may also arise in relation to people with disabilities.

5.3 Exemption for insurance

The Commission supports the proposal that any exception relating to insurance should reflect the wording of the equivalent provision in s 46 of the DDA. The Commission also notes that any such exception will include health insurance (see 5.6.2 of the IP).

5.4 Exemption for credit

The Commission does not support an exemption for age discrimination in the provision of credit or financial services. The Commission is not persuaded that age is central to assessments of the ability to service various forms as debt, as opposed to criteria such as a person's income, savings, investments, credit history etc. In response to concerns that even factors such as requiring a certain credit history may lead to an indirect discrimination complaint (for example, on the basis that such a requirement could disadvantage people of a certain age who have not had the opportunity to develop a credit history), the defence of reasonableness is available to a respondent.

The Commission also notes that none of the other Federal anti-discrimination legislation includes an exemption in relation to the provision of credit or financial services.

However, in the event that the proposed legislation does include an exception in relation to the provision of credit, the Commission supports the proposal that, as proposed in the IP, it reflect the wording of the equivalent provision in s 46 of the DDA.

5.5 Prohibition in relation to access to health and medical goods and services

The Commission notes that everyone, regardless of age, has the right to enjoy the highest attainable standard of physical and mental health, [24] and supports the proposal that age discrimination in relation to health and medical goods and services should be covered under the general prohibitions of discrimination in the proposed age discrimination legislation relating to 'goods, services and facilities' and 'Commonwealth laws and programs'.

5.6 Exemptions in relation to access to health and medical goods and services

5.6.1 Situations in which age is an appropriate criterion

The Commission notes that health services are not exempt from State and Territory anti-discrimination legislation relating to age.

However, recognising that age-based criteria may be legitimately used in the delivery of certain health services, the Commission does not oppose the two exceptions outlined at 5.6.1 dealing with the delivery of group based health programs and individual clinical decisions. It notes however that public health issues, as reflected in s 48 of the DDA, may also need to be considered.

5.6.2 Health insurance issues including Lifetime Health Cover and Community Rating

Given that the Community Rating and Lifetime Health Cover are integral to the current national health insurance scheme, the Commission does not oppose the proposal that these issues should not be affected by the proposed age discrimination legislation.

5.6.3 Issues affecting Indigenous people and people with disabilities

See comments made at 5.2.6 above.

5.7 Young people and goods and services

The Commission notes that the Attorney-General's Department will provide appropriate referrals to responsible government agencies and departments concerning issues relating to young people that fall outside the immediate scope of the proposed age discrimination legislation. The Commission urges relevant agencies to give these issues serious and urgent attention particularly in relation to those matters that are impacted on by the continued imposition of youth wages (see Introduction and 4.5 above).

The Commission also notes that a proposal was raised in the CCG Working Group on Children and Youth concerning participation in voting for youth under the age of 18 years. This would reflect the fact that some people who are younger than 18 years old have an interest in voting and a good knowledge of social and political issues. The working group raised the idea of optional voting, rather than compulsory voting, for people below 18 years of age, or optional registration with compulsory voting for those who choose to register, and that consideration could usefully be given to lower age limits of either 14 or 16 years. The Commission strongly encourages the Government to consider this proposal further as it would provide the opportunity for younger people to participate in fundamental democratic processes and decision making which affects them.

6. AGE DISCRIMINATION IN RELATION TO COMMONWEALTH LAWS AND PROGRAMS

6.1 Prohibition of age discrimination

The Commission supports the extension of the prohibition of age discrimination to acts done under Commonwealth laws or in the administration of Commonwealth programs and suggests that the prohibition reflect the wording in s 29 of the DDA and s 26 of the SDA.

As outlined in the Introduction, the Commission's view is that it opposes a broad form of exemption that exempts all Commonwealth laws from the operation of the proposed age discrimination legislation. However, it accepts that specific exemptions may be appropriate for certain Commonwealth legislation that implements major social policy programs and where that legislation is subject to scrutiny and review by the Federal Parliament on a regular basis. In the Commission's view, such exemptions should apply only to those acts done in order to comply with the relevant legislation. To that extent, the Commission does not oppose the proposal to exempt from the operation of the legislation those pieces of legislation outlined in 6.4 (migration), 6.5 (citizenship and multicultural affairs), and 6.6 (social security legislation and family and community services and related programs).

The Commission notes that the proposal under 6.4 relating to the Migration Act 1958 (Cth) ("Migration Act") and the Migration Regulations 1994 (Cth) also seeks to exempt "actions under these laws". 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 the proposals made in the IP in relation to Commonwealth laws and programs as 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 addition, as outlined under 6.3 of the IP, discretionary acts could be permitted if they met the tests set out in other exceptions, such as the proposed exception for positive discrimination.

As noted in the Introduction, the Commission disagrees with the proposal under 6.7 that age based provisions in defence legislation and subsidiary instruments should be exempt from the proposed age discrimination legislation. This is discussed in more detail below.

In relation to the discussion in relation to the Corporations Act 2001 (Cth) under heading 6.9, the Commission notes that in Age Matters, it recommended [25] that the predecessor to the Corporations Act be amended to remove the maximum age requirements for company directors, and therefore welcomes the advice that amendments were introduced on 12 December 2002 in the Corporations Law Amendment Bill 2002 (Cth) to remove the 72 year age limit in s 201C of the Corporations Act.

In relation to other Commonwealth laws and programs not otherwise expressly dealt with under heading 6 of the IP, the Commission supports the proposal in 6.10 of the IP that the age discrimination legislation exempt acts done in order to comply with other Commonwealth laws, but that these exemptions be reviewed two years after the commencement of the age discrimination legislation. 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.

6.7 Defence legislation

As outlined in the Introduction, 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, [26] a number have involved the Australian Defence Force (ADF) as the respondent [27] and, in some cases, has led to proceedings in the Federal Court. [28]

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. 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 age discrimination legislation 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.

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 [29] 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.

7. AGE DISCRIMINATION IN OTHER AREAS

As a preliminary point, the Commission notes that the areas of clubs, incorporated associations and sport, which are included in other federal anti-discrimination legislation, do not appear to be included in the proposed age discrimination legislation. In light of the importance of these areas to the lives of many people living in Australia, then, subject to constitutional considerations, the Commission would urge that these areas be included in the proposed legislation. In relation to the area of sport, it may be appropriate to include an appropriately drafted exception as is included in other anti discrimination laws. Guidance may be provided by the exception contained in s 42 of the SDA relating to sport.

7.1 Education

The Commission does not oppose the proposal that the age discrimination legislation exempt discrimination in relation to admission to educational institutions where the level of schooling or training is provided only for students above a particular age, but recognises that exceptions may be appropriate in special circumstances. The Commission notes, however, that such age limits will generally be imposed by State and Territory law which, pursuant to the proposal in 9.2.2 of the IP, are to be made exempt from the operation of the proposed age discrimination legislation in any event.

7.2 Accommodation

The Commission considers that it is appropriate to take an approach consistent with other anti-discrimination legislation and exempt discrimination in relation to accommodation where the person providing the accommodation or a near relative resides on the premises and where the accommodation is for a small number of people.

7.3 Land

The Commission does not oppose the proposal that the age discrimination legislation should not make unlawful discrimination that arises from any testamentary disposition or by way of gift.

8. OTHER DISCRIMINATION ISSUES

8.1 Harassment

The Commission submits that the proposed age legislation should prohibit harassment on the basis of age. This is consistent with the approach taken in other federal anti-discrimination laws. Greater recognition is being given to the fact that harassment in itself constitutes a detriment and is a basis for complaint. Practically this would mean that a person could make a complaint if they had been subjected to unwelcome and humiliating behaviour on the basis of age. Harassment provisions also clarify people's rights under the law and help to encourage appropriate standards of behaviour in the workplace. The inclusion of a definition of harassment may provide guidance in this regard.

Harassment provisions in the area of employment are needed to protect both young people and older workers. The Age Matters report noted that the Commission received a number of submissions commenting on the prevalence of workplace harassment and ill-treatment of young people. It found that this is especially the case for apprentices and trainees. [30]

8.2 Cause, instruct, induce etc an unlawful act

The Commission notes that while s 17 of the RDA makes it unlawful for a person to incite the doing of an act that is unlawful under the RDA or to assist or promote the doing of such an act, both the SDA [31] and the DDA [32] provide that a person who causes, instructs, induces, aids or permits another person to do an unlawful act is taken also to have done the act. In addition, as well as being made an offence under the DDA [33], conduct amounting to incitement, assistance or promotion of an unlawful act under the DDA is also included in the definition of "unlawful discrimination" in s 3(1) of the HREOC Act, with the result that a complaint concerning such conduct can also be made to the Commission under s 46P of the HREOC Act.

The Commission suggests that the approach taken in relation to incitement in the DDA should also be taken in respect of the age discrimination legislation. This would ensure consistency with the most recent piece of federal anti-discrimination legislation in relation to this issue.

9. GENERAL EXEMPTIONS

9.1 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.

The Commission notes, however, that the proposal at 9.1 appears to extend 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. As also noted at 4.5 above, article 5 of ILO 111 provides for special measures in the area of employment and occupation that are required to provide "protection or assistance" to workers.

The Commission is of the view that the Government should be cautious that any extension of the current understanding of a special measures provision does not undermine the objective of the proposed legislation to eliminate age discrimination. If the positive discrimination provision is to be included as proposed in the IP, it is suggested that consideration be given to some form of limitation being included, such as the reasonableness of the measure.

9.2 Acts done under statutory or other legal authority

9.2.1 Exemption for acts done to comply with Commonwealth laws

The Commission repeats its submissions set out under heading 6 above.

9.2.2 Exemption for acts done to comply with State laws

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 additional proposal in 9.2.2 that the proposed age discrimination legislation include the ability for 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.

9.2.2 Exemption for court orders and awards

The Commission supports the proposal that the age discrimination legislation include an exemption for acts done in direct compliance with orders of a Commonwealth, State or Territory court or tribunal and notes that this would be consistent with the approach taken in other Federal anti-discrimination law. In relation to the reference in 9.2.2 to facilitative provisions in awards, the Commission reaffirms its submission made at 4.7 above.

9.3 Exemptions for religious purposes, voluntary bodies, and charitable benefits

The Commission submits that if an exemption in relation to religious bodies was ultimately considered necessary, it should only apply where it is necessary to avoid injury to the religious susceptibilities of adherents to the religion. In the Commission's view, any such exemption should not be available in relation to the provision of public services by religious bodies such as employment, welfare and health services.

The Commission opposes the inclusion of an exemption in relation to voluntary bodies. Such an exemption is not included in the RDA or the DDA, the latter being the most recently drafted piece of Federal anti-discrimination legislation. In addition, such an exemption is included in only two pieces of State anti discrimination legislation. [34] The Commission has found that the inclusion of such an exemption in the SDA limits the ability of people to make complaints of alleged acts unlawful discrimination in an important area of public life.

The Commission does not oppose an exemption in relation to charitable benefits in the same form as it appears in other Federal anti-discrimination legislation.

10. OFFENCES

10.1 Victimisation

The Commission notes that as well as being made an offence under each of the RDA [35], SDA [36] and DDA [37], conduct amounting to victimisation under those pieces of legislation is also included in the definition of "unlawful discrimination" in s 3(1) of the HREOC Act, with the result that complaints of victimisation can also be made to the Commission under s 46P of the HREOC Act.

The Commission supports the proposal at 10.1 for victimisation to be made an offence under the age discrimination in order to reflect the seriousness of such action. However, it also submits that conduct amounting to victimisation under the proposed age discrimination legislation should be made unlawful discrimination under the HREOC Act. Not only would this ensure consistency with other Federal anti-discrimination law, but would also act as an additional deterrent to potential acts of victimisation.

10.2 Advertising

The Commission supports the proposal to make it an offence under the proposed age discrimination legislation to advertise in such as way that indicates an intention to unlawfully discriminate on the basis of age. This would be consistent with the approach taken in the SDA [38] and DDA [39]. However, the Commission also notes that such advertising amounts to unlawful conduct under the RDA [40] and can also lead to a complaint to the Commission under s 46P of the HREOC Act if an intention to discriminate unlawfully on the basis of disability is shown. [41] The Commission suggests that the latter approach should also be taken in respect of age. This would ensure consistency with the most recent piece of federal anti discrimination legislation in relation to this issue. It may be appropriate for guidelines to be developed in order to provide guidance in this area.

11. HUMAN RIGHTS AND EQUAL OPPORTUNTIY COMMISSION FUNCTIONS

The Commission supports each of the proposals outlined under heading 11.

12. ISSUES RELATING TO STATES AND TERRITORIES

The Commission supports each of the proposals outlined under heading 12.

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.

3. HREOC Act, ss 30 - 35.

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.

5. At pp 107-119.

6. Report No.1 - Compulsory Retirement Age (1996); Report No.2 - Redundancy arrangements and age discrimination (1997).

7. Anti-Discrimination Act 1977 (NSW) s 6 Equal Opportunity Act 1984 (WA) s E ACT Discrimination Act 1991 s Equal Opportunity Act 1995 (Vic) s 69, Anti-Discrimination Act 1999 (QLD) s 106, Anti-Discrimination Act 1998 (Tas) s 24, Anti-Discrimination Act 1992 (NT) s 53.

8. Equal Opportunity Act 1984 (WA) s G Anti-Discrimination Act 1977 (NSW) s 57.

9. See definition of "unlawful discrimination" in s 3 of the HREOC Act.

10. Section 86 SDA, s 44 DDA.

11. Section 16 RDA.

12. See the definition of "unlawful discrimination" in s 3(1) of the HREOC Act and s 44 of the DDA.

13. As reflected in the current functions of the Commission in s 11(1) of the HREOC Act, s 20 of the RDA, s 48 of the SDA and s 67 of the DDA.

14. See s 46PV of the HREOC Act.

15. See ss 15 to 29 of the DDA.

16. See ss 11,12, 13 and 15 of the RDA.

17. See s 31 of the DDA.

18. 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.

19. See definition of 'contract worker' in s 4(1) of the SDA.

20. Page 114.

21. Page 115-116.

22. See s 3 of the HREOC Act.

23. See s 15 of the DDA.

24. Article 12, International Covenant on Economic, Social and Cultural Rights. Opened for signature 16 December 1966, 999UNTS 3 (entered into force 3 January 1976). Ratified by Australia 10 December 1975.

25. Recommendation 9 at p 111.

26. See note 4 above.

27. Report No.8 - Age discrimination in the Australian Defence Force (2000), Report No.14 - Report of an inquiry into a complaint by Mr Andrew Hamilton of age discrimination in the Australian Defence Force.

28. 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.

29. Recommendation 4 at p 110.

30. Page 65.

31. Section 105 SDA.

32. Section 122 DDA.

33. Section 43 DDA.

34. Equal Opportunity Act 1984 (WA), s G Anti-Discrimination Act 1977 (NSW), s 57.

35. Section 27(2) RDA.

36. Section 94 SDA.

37. Section 42 DDA.

38. Section 86 SDA.

39. Section 44 DDA.

40. Section 16 RDA.

41. See the definition of "unlawful discrimination" in s 3(1) of the HREOC Act and s 44 of the DDA.

Last updated 13 February 2003.