Age discrimination in law and in practice.

• Jurisdiction: Australia
• Author: Encel, Sol
• Date: 01 January 2004

Age discrimination has a much lower profile than discrimination on the grounds of gender or racial origin, which generate much higher levels of complaint. However, this is likely to change as public concern with the ageing of the workforce becomes more urgent. This paper reviews the development of age discrimination legislation in Australia. Three recent state and Commonwealth reviews have examined the effectiveness of anti-discrimination legislation. There is evidence that employers continue to discriminate against older workers, in spite of the fact that they generally recognise the value of experience, reliability and stability. Effective policies against age discrimination should be seen as part of a wider strategy designed to maximise the contribution of older people to the economy and to society in general.

A. Introduction

Anti-discrimination law has established itself in all jurisdictions in Australia since the 1970s. It may be seen as the culmination of a process that began with English philosophers of the 17th century, such as John Locke, who saw government as the guarantor of individual rights. Locke's ideas were central to the American Declaration of Independence, which was also based on the concept of 'inalienable' rights, picked up a few years later in the French Declaration of the Rights of Man and the Citizen. A century and a half later, similar principles were incorporated in much greater detail in the Universal Declaration of Human Rights and in subsequent UN conventions concerning rights for women, children, refugees and other groups. As a result, the terminology of 'human rights' and 'human rights abuses' has become part of the common stock of public discourse.

Unlike the Americans, the drafters of the Australian federal constitution did not insert any guarantees of human rights into their document. Of the Australian states and territories, the Australian Capital Territory is unique in its new Bill of Rights, which came in to force with the Human Rights Act 2004. The absence of a Bill of Rights federally and in the other states and territory reflects the continuing influence of British jurisprudence (although the British situation has changed with the UK's membership of the European Union). In the absence of a Bill of Rights, partial guarantees have developed, of which anti-discrimination legislation is a prominent example.

Anti-discrimination law operates through the settlement of individual complaints, mostly by conciliation but occasionally through a judicial determination. The legalistic framework means that the great majority of complaints are not proceeded with, as we shall see below. We may now turn to a sketch of the historical development of the legislation at the state level, which has now been complemented by federal legislation: the Age Discrimination Act 2004 which became law in June 2004.

B. Historical Development of Age Discrimination Legislation

Age discrimination has a much lower profile than discrimination on the grounds of gender or racial origin, which generate much higher levels of complaint. (2) In a sense, the pressure to act against gender discrimination has been the motive force in this area of public policy, and the recognition of gender discrimination, especially in employment, occurred considerably earlier than action against age discrimination. (3)

The issue of age discrimination was raised in the Henderson report on poverty in 1976. The report drew attention to the connection between poverty and enforced unemployment due to age. (4) A decade later, another major review of the social security system recommended that age should be introduced as a ground for complaint against discrimination into existing state legislation. (5)

The first general piece of legislation to ban discrimination in employment and other areas was passed by the NSW Parliament in 1977. The original Bill, which included age as a prohibited ground of discrimination, was passed by the Legislative Assembly, but an amendment in the Legislative Council, where the Government did not have a majority, removed this provision. Instead, the Anti-Discrimination Board (ADB) set up under the legislation was required to conduct an assessment of the impact of age discrimination. In 1980, the ADB's review supported the introduction of age into the legislation, but recommended the retention of compulsory retirement. Ironically, a subsequent state government acted first to outlaw compulsory retirement, and only later, in 1993, to amend the Anti-Discrimination Act 1977 and add age as a ground for complaint against discrimination.

This time, the Bill passed through both houses of Parliament, despite some last-minute lobbying by employers' organisations (which had lobbied, successfully, against the legislation in 1977). Part 4G of the Act makes it unlawful to discriminate, directly or indirectly, on the basis of age in work, access to places and vehicles, education, provision of goods and services, accommodation and registered clubs. There are provisions for exemption, some of which are discussed below. The amendments came into effect on July 1, 1994.

NSW was not the first state to ban age discrimination. In 1984, the South Australian parliament passed the Equal Opportunity Act 1984 (which replaced an earlier law banning gender discrimination in public employment). The Act creates an Equal Opportunity Commission to enforce its provisions. In 1990, the Act was amended to prohibit age discrimination. South Australia was followed by Queensland (1992), Western Australia (1993), NSW (1994), the Northern Territory (1994), the A.C.T. (1996), Victoria (1996), and Tasmania (1999). Age discrimination in employment was also prohibited by the Commonwealth Workplace Relations Act 1996.

Companion legislation abolishing compulsory retirement (apart from a few categories such as judges, police, and coal miners), was also passed by each jurisdiction during the 1990s, starting with NSW (1990). In 1999, Tasmania was the last to follow suit. In the same year, the Commonwealth Public Service Act 1999 was amended to ban compulsory retirement in Commonwealth employment. Federal legislation has recently been enacted following a report from the Human Rights and Equal Opportunity Commission: the Age Discrimination Act 2004 (see below).

Australian legislation generally recognises the existence of both direct and indirect discrimination. The Equal Opportunity Act 1984 in South Australia is most explicit on this point, defining direct discrimination as occurring when 'a person treats another unfavourably because of the other's age or if he or she treats another person unfavourably on the basis of a characteristic that appertains generally to persons of the other age group.' (6)

The South Australian Act also defines indirect discrimination as occurring when there is a particular requirement, the nature of which

is such that a substantially higher proportion of persons of a different age group complies, or is able to comply, with the requirements than those of the other's age or age group, and the requirement is not reasonable in the circumstances of the case. (7) The NSW Act also recognises the role of indirect discrimination, for example in section 49ZU (3), which prohibits an employer from using age as a pretext for inducing an employee to retire. (8) The 1980 report of the NSW ADB also recognises the role of indirect discrimination by stressing that 'people should not be treated less favourably in employment, provision of goods and services or accommodation because of their chronological age.' (9)

Generally speaking, the various Acts prohibit a range of discriminatory arrangements or actions in the workplace or place where a person is seeking employment. Such actions include the following:

* advertising of vacancies;

* decisions about offers of work;

* terms and conditions of employment;

* decisions on promotion, training, transfer or other work-related benefits;

* termination of employment or other unfavourable actions;

* decisions concerning access to guidance, apprenticeship or training programs or other occupational training or re-training;

* variation of the terms of employment or the terms of work performance.

The various Acts also include definitions of employer and employee. Apart from the straightforward situation of a full-time paid employee, some of the prohibitions in the legislation extend to the following situations:

* independent contractors or contract workers;

* partnerships;

* agents paid by commission;

* membership of industrial organisations, including trade unions and professional associations;

* qualifying bodies with the power to confer, extend or renew qualifications or authorisations to engage in a trade or profession;

* employment agencies which provide services for finding employment, or finding...