Williams, Daryl --- "Significant Steps Towards a Commonwealth Age Discrimination Act" [2002] ALRCRefJl 16; (2002) 81 Australian Law Reform Commission Reform Journal 16

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Reform Issue 81 Spring 2002

This article appeared on pages 16 - 19 of the original journal.

Significant steps toward a Commonwealth Age Discrimination Act

By the Hon Daryl Williams AM QC MP*

The Howard Government was re-elected last year on a platform that included significant initiatives to assist older Australians in a number of important areas. Among these, a major priority is the development of legislation to prohibit discrimination on the basis of age.

The Howard Government recognises the need for Australians of all ages to be able to participate fully in our society. Great importance is placed on the economic and social contribution that all Australians can make to our community in a wide range of activities. Furthermore, the Government takes very seriously allegations of discrimination and condemns discrimination in all its forms. It was in light of these important concerns that the Government made a commitment to develop age discrimination legislation, and has made significant progress toward implementing this commitment.

Age discrimination has increasingly become a significant problem for older Australians, as well as for children and young people. The ageing population, and other demographic changes impacting on the workforce and other areas of public life, make the need to combat age discrimination more pronounced still. However, age discrimination is not currently prohibited by federal legislation. Other kinds of discrimination are already made unlawful by the Sex Discrimination Act 1984 (Cth), the Racial Discrimination Act 1975 (Cth) and the Disability Discrimination Act 1992 (Cth). Each State and Territory has anti-discrimination legislation that includes provisions prohibiting discrimination on the ground of age.

Enacting age discrimination legislation at the federal level will not only introduce a consistent, nation-wide complaint-handling, education and awareness-raising regime for age discrimination. It will also send a strong message to the whole community that age discrimination is not to be tolerated, and will be a powerful tool for changing negative attitudes about particular age groups, both young and old. The commitment to develop this legislation reflects the high level of importance that the Commonwealth Government gives to the prevention of age discrimination.

The international context

The development of comprehensive national age discrimination legislation that protects persons of all ages in a range of areas of public life puts Australia at the forefront of international initiatives to eliminate age discrimination.

I met with the United Kingdom (UK) Minister of State in London in May this year and discussed with her the process her Government is undertaking to develop age discrimination legislation. Although the UK legislation will be more limited in scope than the legislation being developed by the Australian Government, it is clear that the UK Government has identified many of the same issues and complexities that arise in relation to age discrimination in the Australian context.

I understand that some other EU Member States have age discrimination legislation in place, but that the United Kingdom Government’s timetable for implementing the directive indicates that regulations on age discrimination may not be in place until 2006.

A few other countries have already enacted anti-discrimination provisions in relation to age. Two notable examples are New Zealand and the United States of America.

New Zealand’s laws make age a ground of discrimination that can be examined by the New Zealand equivalent of the Human Rights and Equal Opportunity Commission. This legislation was based on the Victorian Equal Opportunity Act 1995, but does not apply to age discrimination against children.

The United States’ provisions are limited to employment issues and persons who are between 40 and 65 years old. Ireland and some Canadian provinces also have age discrimination provisions in certain statutes.

A consultative process

The development of this legislation is a complex process that will require the issues and concerns of business and the community to be carefully considered. As an initial step in this process, my Department consulted over 90 organisations and wrote to a further 180 organisations representing business, employers and employees, older persons, children and young people, to seek their views about important issues regarding age discrimination.

Following these consultations I established a Core Consultative Group of key stakeholders to assist my Department to develop a detailed proposal for an Age Discrimination Bill. The impressive credentials of the members of the Group have given this initiative the experience and intellectual rigour that is required in order to deliver its goals to the Australian community. The Group has undertaken a huge analytical process over the past few months, grappling with many complex issues that arise in the context of age discrimination.

The wide-ranging consultative process the Government has undertaken in developing the legislation will ensure that the legislation strikes the right balance between the need to eliminate unfair discrimination on the basis of age and the need to ensure sufficient flexibility to allow for situations where age requirements may be necessary – for example in relation to social security, youth wages and job training.

The need for such a balance is particularly pronounced with respect to age discrimination. Many age-based criteria are necessary to address the needs or disadvantages of people in a particular age group, such as youth wages, which are important both for business development and for creating employment opportunities for young people. Similarly, as discussed below, many job training programs assist both older and younger people who become unemployed. There are also many distinctions made on the basis of age that reflect broadly agreed and established policies about protective measures required in certain areas of public life, such as state and territory laws that restrict the availability of alcohol and tobacco to people over a certain age.

The deliberations of the Core Consultative Group have provided me with a comprehensive and highly informed basis on which to submit a detailed proposal for an Age Discrimination Bill to the Government for its approval later this year. I expect that a Bill shall be drafted early next year for consideration by the Parliament.

The role of the Human Rights and Equal Opportunity Commission

The Core Consultative Group has also considered the role the Human Rights and Equal Opportunity Commission should have in administering the legislation. The Commission’s responsibilities, broadly stated, are: public awareness and education; inquiring into possible human rights infringements; inquiring into and attempting to conciliate anti-discrimination complaints; and policy and legislative development. The Government believes the best way to protect human rights is by educating the community about their rights and responsibilities. The Commission’s educative function will be crucial to the effectiveness of introducing a new federal regime prohibiting age discrimination. I also note that the development of age discrimination legislation will implement recommendations made by the Commission in its report released in 2000: Age Matters: a report on age discrimination.

A whole-of-government approach

In developing the legislation, my Department is also working with other government departments responsible for health and ageing, employment, the economy, welfare, and other matters concerning older Australians, children and young people, to ensure the legislation will operate appropriately in relation to Commonwealth laws and programs, and will complement relevant provisions in existing Commonwealth legislation. While the new legislation will protect Australians of all ages from discrimination, it will also be an integral part of a wide range of other Government initiatives that will benefit both older and younger Australians in many important areas of public life.

In relation to employment, age discrimination legislation will complement the Government’s initiative last year to remove compulsory age retirement for statutory office holders. Under the Abolition of Compulsory Age Retirement (Statutory Officeholders) Act 2001, Commonwealth statutory office holders who hold fixed term appointments are no longer compelled to retire once they reach a certain age. Compulsory age retirement provisions for a wide range of Commonwealth statutory appointments (such as the Director of the National Gallery or the National Museum) were removed. This means that older Australians are able to be considered for appointment to statutory positions, or continue their important contribution to Australia in these positions, past any specified retiring age. This significantly enhances the ability of statutory appointees to continue to serve the community beyond the usual retirement age. The removal of these provisions brought Commonwealth statutory office holders into line with Commonwealth public servants, who have not been required to retire at 65 since the enactment of the Public Service Act 1999 (Cth).

The Government recognises that some people choose to work past the age of 70 while looking forward to their retirement years. The Government indicated in its pre-election statement A Better Superannuation System that it would recognise this choice to continue working and, from 1 July 2002, increase from 70 to 75 the age up to which working members of superannuation funds can make personal superannuation contributions. This commitment was given effect through the 2002-03 Budget and legislation was passed by the Parliament in June 2002.

The Federal Government also recognises that some mature age people face significant difficulties finding employment. Although workers aged 45 years and older, as a group, have and continue to experience unemployment rates considerably lower than job seekers aged less than 45 years, older job seekers do not fare as well once they become unemployed. Their average duration of unemployment is much higher than younger job seekers and generally rises with age.

The Australians Working Together package provides $146 million over four years for a range of measures to assist mature age job seekers, including access to Job Search Training without having to wait until they have been unemployed for three months, Training Accounts and Credits and new Transition to Work services, simpler income support arrangements and increased help for those on Newstart Allowance.

In recognition of the Government’s priority of addressing challenges arising from an ageing society, the Government recently created the position of Minister for Ageing, held by the Hon Kevin Andrews MP. The prominence of this issue is also reflected in the portfolio title of Health and Ageing. Minister Andrews led Australia’s delegation to the 2nd World Assembly on Ageing in Madrid in April this year, and has undertaken the development of the National Strategy for an Ageing Australia. The Strategy seeks both to build upon social and economic policy reform of recent years and to lay-out a framework for engaging the community and for developing and coordinating policies and programs to address the demographic ageing of Australia’s population. The Strategy also recognises the important contribution of the non-government sectors in Australia, and seeks to coordinate and encourage the participation of these groups in a strong partnership with our three levels of government.

The Strategy is arranged around four themes: independence and self-provision; attitude, lifestyle and community support; healthy ageing; and world-class care. It recognises that the ageing of the Australian population is a significant common element to be addressed by governments, business and the community. As with the development of age discrimination legislation, the Strategy recognises that all Australians, regardless of age, should have access to employment, training, education, housing, transport, cultural and recreational opportunities and care services, appropriate to their diverse needs, and be able to participate fully in the cultural, social and economic life of Australia.

In relation to young people, the Government has recently created the new position of Minister for Children and Youth Affairs, held by the Hon Larry Anthony MP. Minister Anthony led Australia’s delegation to the 27th Special Session of the United Nations General Assembly on Children in New York in May 2002. In addition, a number of Government initiatives are aimed at improving the employability of young people, both while at school and after joining the labour market. Such measures encourage young people to complete Year 12 or equivalent; expand vocational training, apprenticeship and work placement schemes; provide career counselling; and make Job Network services more accessible to young people.

The development of age discrimination legislation will build upon these important employment and welfare-related initiatives for the assistance of older and younger Australians, and will also serve to eliminate unfair discrimination and promote equal opportunity in a range of other areas of public life.

However great the need is today for the Government to provide comprehensive, measured and fair protection from age discrimination, there is no doubt that this need will only become greater in the future. One thing is clear above all others – every Australian, at some point in their lives, will benefit from this legislation.

* The Hon Daryl Williams is the Commonwealth Attorney-General. The Attorney-General is indebted to Matt Hall of the Attorney-General’s Department for his work on this article. Responsibility for the views expressed is with the Attorney-General.