A COMPROMISED BALANCE? A COMPARATIVE EXAMINATION OF EXCEPTIONS TO AGE DISCRIMINATION LAW IN AUSTRALIA AND THE UK.

• Date: 01 April 2018
• Author: Blackham, Alysia

Contents I Introduction II Exceptions to Discrimination Law III The Australian and UK Legal Frameworks IV Exceptions to Age Discrimination Law A Domestic Duties B Occupational Requirements C Religious Bodies D Statutory Provisions E Public Safety and Security F Objectively Justifying Discrimination V Discussion and Lessons VI Conclusion I Introduction

Discrimination legislation represents a negotiated compromise between the progressive potential of equality law and the established status quo. (1) This compromise is particularly evident in the exceptions allowed to discrimination law; permitting certain areas or behaviours to be immune from the strictures of equality law presents a strong stance regarding the normative limits of equality. Thus, exceptions to equality law reveal both tensions and telling compromises regarding the boundaries of equality and equal treatment.

In age discrimination law, these tensions and compromises are particularly fraught. Age discrimination is typically seen as less socially problematic than other forms of discrimination, (2) and is regarded as socially acceptable or justified in a wide variety of scenarios. (3) Age is still regarded as a relevant principle for social ordering, meaning it is taken into account in a wide range of social and economic decisions. Thus, age discrimination can be instrumentally useful in a variety of settings, reflecting the 'double bind' between the instrumental and intrinsic purposes of age discrimination law. (4) This fraught compromise inherent in age discrimination law is reflected in the broad exceptions typically allowed to the principle of age equality. Thus, age discrimination law represents a key case study for exploring the role of exceptions in navigating tensions in equality law.

In this article, I consider the role of exceptions in negotiating the tensions of equality law, focusing on age discrimination law in particular. Drawing on case studies of exceptions to age discrimination law in Australia and the UK, I consider the normative position on age equality that emerges from these legal boundaries. Australia and the UK both face significant demographic change in the coming years, with populations that are 'ageing rapidly'. (5) This will have significant consequences for the sustainability of labour markets and social security systems in both countries, flagging the instrumental need for age discrimination laws to lift employment rates for older workers. (6) Indeed, in 2016, the Australian Human Rights Commission described age discrimination against older workers as 'systemic' and 'a significant barrier to workforce participation'. (7) Beyond a shared experience of demographic ageing, Australia and the UK share a common legal tradition, and have both framed their equality law on an individual rights model. Indeed, Australian discrimination law was originally based on that of the UK. (8) At the same time, there are still significant differences to the exceptions integrated in the national legal frameworks, reflecting different national normative decisions about the boundaries of age equality law. Thus, the countries are useful comparators for an exploration of the normative consequences of exceptions to equality law.

While previous studies have undertaken comparative analysis of the situation in Australia and the UK, (9) this study extends existing research by conducting a detailed comparative legal doctrinal analysis of exceptions within the two regimes. Though age discrimination may occur across society, my focus here is particularly on age discrimination in employment. Given the potential economic value and individual significance of extending working lives, the field of employment represents a key challenge and focus for equality law. Thus, it is a key site for contests regarding the appropriate boundaries of discrimination law. Drawing on this comparative analysis, I argue that the broad exceptions to age discrimination law in both jurisdictions reflect a deprioritising of age equality, and a preference for the instrumental or economic aims underlying age equality law. I argue that the restrictive boundaries of age discrimination law risk undermining the effectiveness of equality law in practice.

II Exceptions to Discrimination Law

Exceptions to discrimination law represent a negotiated compromise regarding the boundaries of equality law and its progressive potential. For Easteal, Cheung and Priest, '[a]ll anti-discrimination acts have been controversial to some extent and have necessitated compromises to be enacted'. (10) Exceptions are a tool to enact these compromises. (11)

At a basic level, exceptions may be seen as a concession to the status quo; or perhaps a concession to interest-group lobbying. For Thornton, vested interests are reflected in the text of discrimination statutes, showing a 'deference to conservative community values'. (12) In the UK, Dickens and Sargeant both argue that business lobbying has led to a number of '"business-friendly" concessions' in implementing EU law in the UK (13)--including in the introduction of a national default retirement age in 2006. (14) As exceptions are a core means of drawing the boundaries for equality law, they understandably also represent a key battleground for equality law. For example, in the passing of the Equal Opportunity Act 2010 (Vic), exceptions for religious discrimination in Victoria were widened, (15) despite other measures being introduced into the Act to progressively realise equality. (16)

While exceptions might be attributable to vested interests and lobbying, they also likely reflect a normative determination that certain areas or groups should not be subject to equality law's progressive potential: equality law has certain, predefined limits. Excluding certain behaviour or groups from equality law therefore reflects a normative judgment as to the acceptable limits of equality law, and draws the line between normatively acceptable and unacceptable discrimination. (17) For Thornton, exceptions illustrate 'contemporary resistance to state regulation of the market, and become 'almost schizophrenic' in trying to decide the line between acceptable and unacceptable discrimination. (18) Thus, these normative judgments are far from clear-cut, and different statutory exceptions may prove to be inconsistent or contradictory in practice.

To some extent, exceptions may assist with securing the workability of discrimination statutes. For Smith, exceptions to equality law help to 'prevent absurdities', (19) particularly where (as in Australia) there is no general justification defence to the general principle of equality. (20) In Australia, the 'patchwork' of exceptions to equality law is seen as helping to make the statute work in practice, as part of a 'concession to a strict formal equality approach' where discrimination is never allowed. (21) While this may be correct, determining what is an 'absurdity' requires a normative judgment about the acceptable limits of equality law. This argument therefore supports the normative role of exceptions in concreting the compromise embodied in discrimination law.

The normative limits created by exceptions are fundamentally linked to the aims or objectives of equality law. In age discrimination law, for example, statutes are generally seeking to achieve two, potentially incommensurate, objectives: first, to achieve instrumental economic ends, such as by extending working lives and reducing demand on pension systems; and, second, to achieve intrinsic or dignity ends, and respect the dignity of workers of all ages. (22) These two aims are likely to come into conflict: age discrimination can be economically efficient, in some circumstances, while still infringing workers' dignity. (23) Thus, age discrimination law reflects a negotiated compromise regarding how these objectives should be reconciled if they conflict.

Age discrimination law is therefore aptly regarded as a balancing act, concerned with the intergenerational distribution of goods in society such as work and employment opportunities. Exceptions, then, are a means of striking a balance between conflicting interests. For Thornton, this is a balance between freedom and equality; (24) for Fredman, between liberty and equality. (25) Exceptions give 'freedom to act' to vested interests, and reveal a 'lukewarm' commitment to equality, which plays 'second fiddle to freedom'. (26) For Dickens, the balance is between fairness and efficiency: (27) the 'business case for equality', which was key to prompting equality regulation in Britain, means that the boundaries of regulation may only extend to the extent that they 'promote and support business interests'. (28) Diversity is promoted to the extent that it is 'good for business', (29) and business profitability is seen as being in the public interest. (30)

Going further, Thornton also maps exceptions onto the public and private spheres, arguing that discrimination law mandates equality in public, and freedom in private, (31) enabling the 'untrammelled pursuit of personal desires' in the private sphere. (32) Harrison and Parkinson see this divide as normatively desirable, and argue that discrimination law should only apply to the commons, with (religious) liberty elsewhere. (33) However, for Thornton, the public-private dichotomy is inherently gendered: traditionally, women have been relegated to the private sphere, and men have occupied the public sphere. (34) Accepting the public-private divide therefore limits the scope of equality law to assist women and address gender inequality. Indeed, what is 'private' is socially constructed, and often shaped by the state. (35) Thus, using the public-private dichotomy as a justification for exceptions to equality law is theoretically problematic and normatively questionable, as it reinforces gender differences. (36)

It is important to acknowledge the qualitative differences in...