Bills Digest No. 47 2001-02
Abolition of Compulsory Age Retirement (Statutory Officeholders)
Bill 2001
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Abolition of Compulsory Age Retirement
(Statutory Officeholders) Bill 2001
Date Introduced: 29 August 2001
House: House of Representatives
Portfolio: Attorney-General
Commencement: Subject to two exceptions for
provisions which will be repealed if other legislation has
commenced before this Bill,(1) 28 days after Royal
Assent.
To abolish compulsory age
retirement for a range of Commonwealth statutory officeholders.
According to population forecasts, Australia is
expected to experience significant demographic changes over the
next few decades, particularly a growth in the number of aged
persons as a percentage of the general population. The Minister for
Aged Care, the Hon. Bronwyn Bishop, recently noted
that:(2)
In 1976 Australia had 1.3 million people over 65
years or 9 per cent of the total population. Today there are 2.3
million people over the age of 65 years or 12 per cent of the total
population. By 2016 there will be 3.5 million or 16 per cent; and
by 2051, 6.03 million or over 25 per cent - one-quarter of
Australia's population - will be aged over 65.
Among the recommendations made by the OECD to
developed nations dealing with the challenges of an ageing
population are the removal of early retirement incentives in both
public and private sectors, and changing a range of practices that
discriminate against mature-age workers, including abolition of
compulsory retirement ages.(3)
All States and Territories in Australia have
passed laws outlawing various forms of discrimination including age
discrimination.(4) Additionally, all States and
Territories except the Northern Territory(5) have
removed compulsory age retirement provisions from their public
service legislation.
The Commonwealth government has not legislated
comprehensively in the field of age discrimination. Its specific
discrimination laws are confined to discrimination on the grounds
of race, sex and disability.(6) In part this reluctance
may be attributable to doubts about the Commonwealth's
constitutional power to enact laws specifically prohibiting age
discrimination.(7) Nevertheless, over the past decade
the Commonwealth has slowly been moving towards removing age-based
discrimination in employment from Commonwealth laws.
The first step was taken in 1993, when the
Industrial Relations Reform Act 1993 was passed. The Act,
which came into effect on 30 March 1994, established minimum
national standards in relation to the termination of employment,
including prohibiting termination of employment on the ground of
age.(8) This prohibition applies to most employment
relations and not only to workers covered by federal awards.
From 5 December 1999, when the new Public
Service Act 1999 commenced operation, compulsory retirement on
the ground of age was abolished for Commonwealth public servants
employed under that Act.
This Bill proposes also to abolish compulsory
age retirement for a range of employees who hold appointments to
positions created under a number of Commonwealth laws. Current
provisions prevent the appointment of people once they reach a
certain age, usually 65, or require them to retire from existing
appointments at that age.
The removal of compulsory retirement provisions
affecting statutory officeholders has been justified on the basis
of the need to retain the expertise and experience of older
Australians in the workforce. The Government claims the amendments
'will assist in changing attitudes about the abilities of older
workers and will remove artificial and archaic boundaries between
work and retirement.'(9)
The need for federal action on age
discrimination has been noted for some considerable time. As the
then Human Rights Commissioner, Chris Sidoti, commented in
launching the report Age Matters: A Report on Age
Discrimination in July 2000:(10)
For over 10 years federal governments of both
political persuasions have talked about this but done little. The
situation now is that the Commonwealth lags far behind every state
and territory in protecting people from discrimination based on
age. .... it's time to catch up.
Relevant international
instruments
Australia is a party
to a number of international instruments which are relevant to the
issue of age discrimination in general and compulsory age
retirement in particular. None expressly prohibits discrimination
on the basis of age, although they contain general obligations of
non-discrimination, including in relation to employment.
International human rights
instruments
The International Covenant on Civil and
Political Rights (ICCPR) and the International Covenant on
Economic, Social and Cultural Rights (ICESCR), which are the
foundational international treaties on human rights, do not
specifically refer to 'age' as a ground upon which discrimination
is to be prohibited. However, countries are required to respect and
guarantee the equal enjoyment of the rights contained in the
covenants (including the right to work and the right to appropriate
promotion in employment)(11) without discrimination of
any kind, including on grounds of 'race, colour, sex, language,
religion, political, or other opinion, national or social origin,
property, birth or other status'.(12) It is likely,
although not yet entirely clear, that 'other status' would be taken
to include 'age'.
Additionally, Article 26 of the ICCPR requires
countries through their laws to:
prohibit any discrimination and guarantee to all
persons equal and effective protection against discrimination on
any ground such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or
other status.
Again, the reference to 'other status' may
provide a foundation for legislation guaranteeing equal protection
of the law to all persons regardless of age.
ILO Conventions
Subclause 2(b) of ILO Recommendation
(No.111) Concerning Discrimination in Respect of Employment and
Occupation states that national policies should be developed,
consistent with national conditions and practice, which prevent
discrimination in employment including in relation to security of
employment. Subclause 2(c) of this Recommendation specifically
provides that "government agencies should apply non- discriminatory
employment policies in all their activities." This Recommendation
accompanies ILO Convention (No. 111) Concerning Discrimination
in Respect of Employment and Occupation. Although the
definition of 'discrimination' in Convention No 111 does not
specifically refer to 'age' as a prohibited ground of
discrimination, article 5 notes that special measures designed to
provide special protection for people by reason of attributes which
include 'age' do not constitute discrimination.
Article 5 of ILO Convention (No.158)
Concerning Termination of Employment at the Initiative of the
Employer(13) lists reasons which do not constitute
valid reasons for termination of employment. The reasons listed do
not, however, include age. Clause 5 of the accompanying
recommendation, ILO Recommendation (No.166) Concerning
Termination of Employment at the Initiative of the Employer,
states that in addition to the grounds listed in article 5 of
Convention No 158, "age, subject to national law and practice
regarding retirement" should also not constitute a valid reason for
termination.
Compulsory retirement ages not
affected
The Bill does not abolish all compulsory
retirement ages in Commonwealth legislation.
Compulsory retirement ages will continue to
apply to serving Australian Defence Force personnel. The age of
retirement varies, and is generally lower for women than for men,
and for lower-ranking officers than for more senior
officers.(14) The Attorney-General justifies the
retention of these restrictions on the basis that they 'are
primarily based on considerations of operational
effectiveness.'(15)
Justices of the High Court and other federal
courts (such as the Federal Court, the Family Court and the Federal
Magistrates' Court) will continue to be required to retire at the
age of 70. This limitation is contained in the
Constitution.(16)
Similarly, under section 201C of the
Corporations Act 2001, directors of public companies and
their subsidiaries may only hold office until the next Annual
General Meeting following the day they turn 72. Persons over 72 may
act as directors of public companies and their subsidiaries only if
they are appointed by special resolution at an Annual General
Meeting of the company, and the notice of the meeting states the
person's age.(17)
Currently, a number of Commonwealth laws provide
for the appointment of certain officeholders for fixed terms. Many
also provide that these terms cannot extend beyond a compulsory
retiring age, which is usually 65, but in some cases is 70. The
Bill will abolish provisions mandating compulsory retirement at a
certain age for the majority of Commonwealth statutory
officeholders.
The abolition of compulsory retirement will
apply only to appointments made after the Bill commences
(item 97). This means that it will not apply to
existing statutory officeholders, unless they are appointed for a
further term after the Bill commences.
The following table lists the statutory
officeholders whose compulsory retiring ages will be abolished.
| Statutory body> |
Officeholders> |
Compulsory retiring age> |
Schedule 1 item no> |
|
|
Director of Chemicals Notification and Assessment
|
65
|
63
|
|
|
Director of War Graves
|
65
|
95
|
|
|
Judge Advocate General
Deputy Judge Advocates General
|
65
|
38
|
|
|
Native Title Registrar
|
65
|
76
|
|
|
Special Prosecutors
|
65
|
87, 88
|
|
Aboriginal and Torres Strait Islander Commission
|
Chief Executive Officer
Director of Evaluation and Audit
General Manager, Torres Strait Regional Authority
Indigenous Business Australia Director
Indigenous Business Australia General Manager
|
65
|
1
2
3
4
5
|
|
Administrative Appeals Tribunal
|
Full-time Deputy Presidents who are not Judges
|
70
|
6, 7
|
|
Administrative Appeals Tribunal
|
Full-time senior members
Full-time members
Registrar
|
65
|
6, 7
6, 7
8
|
|
Australia Council
|
Full-time Chairperson
General Manager
|
65
|
9
10
|
|
Australian Bureau of Statistics
|
Australian Statistician
|
65
|
11
|
|
Australian Centre for International Agricultural Research
|
Director
|
65
|
13
|
|
Australian Customs Service
|
Chief Executive Officer
|
65
|
37
|
|
Australian Electoral Commission
|
Electoral Commissioner
Deputy Electoral Commissioner
State Australian Electoral Officers
|
65
|
35
|
|
Australian Film, Television and Radio School
|
Director or Acting Director
|
70
|
14
|
|
Australian Industrial Registry
|
Industrial Registrar
|
65
|
96
|
|
Australian Institute of Aboriginal and Torres Strait Islander
Studies
|
Principal
|
65
|
15
|
|
Australian Institute of Criminology
|
Director
|
65
|
36
|
|
Australian Institute of Family Studies
|
Director
|
65
|
56
|
|
Australian Institute of Health and Welfare
|
Full-time members
|
65
|
16
|
|
Australian Institute of Marine Science
|
Director or Acting Director
|
65
|
17, 18, 19
|
|
Australian Institute of Sport
|
Director
|
65
|
28
|
|
Australian Maritime College
|
Principal
|
65
|
65, 66
|
|
Australian National Maritime Museum
|
Director
|
65
|
20
|
|
Australian Nuclear Science and Technology Organisation
|
Full-Time Board members
Executive Director
|
65
|
21
22
|
|
Australian Safeguards Office
|
Director of Safeguards
|
65
|
77
|
|
Australian Securities and Investments Commission
|
Members
|
65
|
23
|
|
Australian Security Intelligence Organisation
|
Director-General
|
65
|
25, 26
|
|
Australian Sports Commission
|
Executive Director
|
65
|
27
|
|
Australian Sports Drug Agency
|
Chief Executive
|
65
|
29
|
|
Australian Taxation Office
|
Commissioner of Taxation
Second Commissioners of Taxation
|
65
|
90, 91
|
|
Australian Tourist Commission
|
Managing Director
|
65
|
30, 31
|
|
Australian Trade Commission
|
Managing Director
Deputy Managing Director
|
65
|
32
|
|
Australian War Memorial
|
Director
|
65
|
33
|
|
Australian Wine and Brandy Corporation
|
Members
|
65
|
34
|
|
Commissioner for Superannuation
|
Commissioner
|
65
|
89
|
|
Commonwealth Ombudsman
|
Ombudsman
|
65
|
80
|
|
Commonwealth Scientific Industrial Research Organisation
|
Chief Executive
|
65
|
85
|
|
Corporations and Securities Panel
|
Members
|
65
|
24
|
|
Defence Force Retirement Death Benefits Authority
|
Deputy Chairman
Members
Deputies of members
|
65
|
39
39
40
|
|
Defence Housing Authority
|
Appointed members
Managing Director
|
65
|
41, 42
43, 44
|
|
Development Allowance Authority
|
Development Allowance Authority (single person statutory
office)
|
65
|
45
|
|
Director of Public Prosecutions
|
Director
Associate Director
|
65
|
46
47
|
|
Equal Opportunity for Women in the Workplace Agency
|
Director
|
65
|
48
|
|
Export Finance and Insurance Corporation Board
|
Appointed members
Managing Director
Deputy Managing Director
|
65
|
49, 50
51
51
|
|
Family Court of Australia
|
Judicial Registrars
Chief Executive Officer
|
65
|
52, 53, 54
55
|
|
Federal Court of Australia
|
Registrar
Full-time native title assessors
|
65
|
57
58
|
|
Great Barrier Reef Marine Park Authority
|
Members
|
65
|
59, 60
|
|
Health Insurance Commission
|
Managing Director
|
65
|
61
|
|
High Court of Australia
|
Chief Executive and Principal Registrar
|
65
|
62
|
|
Inspector-General of Intelligence and Security
|
Inspector-General
|
65
|
64
|
|
National Capital Authority
|
Full-time members
|
65
|
12
|
|
National Crime Authority
|
Members
|
65
|
67
|
|
National Gallery of Australia
|
Director
|
65
|
68
|
|
National Institute of Occupational Health and Safety
|
Director
|
65
|
75
|
|
National Library of Australia
|
Director-General
|
65
|
71
|
|
National Museum of Australia
|
Director
|
65
|
73
|
|
National Occupational Health and Safety Commission
|
Chief Executive Officer
|
65
|
74
|
|
National Standards Commission
|
Executive Director
|
65
|
72
|
|
Office of National Assessments
|
Director-General
|
65
|
78, 79
|
|
Office of the Privacy Commissioner
|
Privacy Commissioner
|
65
|
82, 83
|
|
Officer Parliamentary Counsel
|
First Parliamentary Counsel
Second Parliamentary Counsel
|
65
|
81
|
|
Privacy Advisory Committee
|
Members
|
65
|
84
|
|
Private Health Insurance Administration Council
|
Chief Executive Officer
|
65
|
69, 70
|
|
Repatriation Commission
|
Commissioners
|
65
|
94
|
|
Snowy Mountains Hydro- Electric Authority
|
Commissioner
Associate Commissioners
|
65
|
86
|
|
Veterans' Review Board
|
Full-time members
|
65
|
92, 93
|
-
- Items 6, 7 and 8 repeal sections of the Administrative
Appeals Tribunal Act 1975. If the Administrative Review
Tribunal (Consequential and Transitional Provisions) Bill 2001 has
been passed and section 4 has commenced, this Act will already have
been repealed, so items 6, 7 and 8 will be redundant. Item
86 repeals subsection 9(4) of the Snowy Mountains
Hydro-Electric Power Act 1949. If section 59 of the Snowy
Hydro Corporatisation Act 1997 has commenced, this Act will
already have been repealed, so item 86 will be redundant.
- Bronwyn Bishop, 'Population ageing and the economy', CEDA
Bulletin, July 2001, p. 42.
- Bronwyn Bishop, 'Population ageing and the economy', CEDA
Bulletin, July 2001, p. 44.
- Discrimination Act 1991 (ACT), paragraph 7(1)(ib);
Anti-Discrimination Act 1977 (NSW) Part 4G;
Anti-Discrimination Act 1992 (NT), paragraph 19(1)(d);
Anti-Discrimination Act 1991 (Qld), paragraph 7(1)(f);
Equal Opportunity Act 1984 (SA), Part VA;
Anti-Discrimination Act 1998 (Tas), paragraph 16(b);
Equal Opportunity Act 1995 (Vic), paragraph 6(a);
Equal Opportunity Act 1984 (WA), section 4.
- Public Sector Employment and Management Act 1993 (NT),
section 36. Tasmania only recently removed its compulsory age
retirement provision, with the enactment of the State Service
Act 2000.
- Racial Discrimination Act 1975, Sex Discrimination Act
1984, Disability Discrimination Act 1992.
- The Commonwealth has no direct constitutional power to
legislate with respect to human rights issues. The external affairs
power, section 51(xxix), gives the Commonwealth the ability to
implement international treaties and instruments to which Australia
is a party. However, there is as yet no international instrument
specifically covering age discrimination, although some instruments
may be interpreted as including the matter.
- This was originally contained in section 170DF of the
Industrial Relations Act 1988. Currently, this prohibition
is contained in paragraph 170CK(2)(f) of the Workplace
Relations Act 1996.
- The Hon. Daryl Williams QC MP, Second reading speech on the
Abolition of Compulsory Age Retirement (Statutory Officeholders)
Bill 2001, House of Representatives, Hansard, p. 30231, 29
August 2001.
- Chris Sidoti, Human Rights Commissioner, 'Launch of Age
Matters: A report on Age Discrimination', Speech to the Council on
the Ageing (Australia), Melbourne, 18 July 2000, at
http://www.hreoc.gov.au/speeches/human_rights/launch_age_matters.html
(6 September 2001).
- Articles 6 and 7 of the ICESCR.
- Article 2 of the ICCPR, Article 2 of the ICESCR.
- The text of this Convention, but not the accompanying
recommendation, is annexed as Schedule 10 to the Workplace
Relations Act 1996.
- Regulation 21 and Schedule 3 of the Defence Forces Retirement
Benefits Regulations. See section 17 of the Naval Defence Act
1910, section 27 of the Defence Act 1903.
- The Hon. Daryl Williams QC MP, Second reading speech on the
Abolition of Compulsory Age Retirement (Statutory Officeholders)
Bill 2001, House of Representatives, Hansard, p. 30231, 29
August 2001.
- Section 72. Under that section, the Parliament has power to
make a law requiring judges of federal courts other than the High
Court to retire at an age less than 70, but not to extend the age
requirement or abolish it altogether. This can only be done by
constitutional referendum.
- Subsections 201C(8) and (9) of the Corporations Act
2001. It has previously been held that this restriction may be
overridden by State or Territory legislation that clearly expresses
such an intention. In Castle Hill RSL Ltd v O'Brien (1994)
12 ACLC 984 the Supreme Court of NSW considered section 73A of the
Registered Clubs Act 1976 (NSW), which provided that
nothing in the Companies Code (a predecessor of the
Corporations Act 2001) prevented a person over the age of
72 becoming or being a member of the governing body of a registered
club. The Court held that that permission prevailed over the
restriction (corresponding to the current section 201C) in the
Companies Code. It was not necessary to decide whether State
anti-discrimination legislation would have a similar effect.
However, because the Corporations Act
2001 is a Commonwealth statute, in contrast to the State
Companies Codes, it may be doubted whether that reasoning would be
applicable to the current age restriction on directors. Castle
Hill RSL Ltd v O'Brien (1994) 12 ACLC 984 concerned a
difference between two New South Wales provisions, one applicable
to public companies and the other to registered clubs. Now that the
public company provision is contained in the Commonwealth
Corporations Act 2001, section 109 of the Constitution
would apply to any inconsistency. That section provides that
Commonwealth laws prevail over inconsistent State laws. However,
the operation of section 109 is modified by two provisions of the
Corporations Act 2001.
Section 5F of the Corporations Act 2001
permits a State or Territory to declare a matter to be an 'excluded
matter', in which case all or some specified provisions of the
Corporations Act 2001 will not apply to that matter. This
power could be used to preserve provisions permitting directors to
continue to serve beyond the age of 72.
Section 5G of the Corporations Act 2001
also contains complex rules governing possible inconsistencies
between Commonwealth and State or Territory laws.
Katrine Del Villar
7 September 2001
Bills Digest Service
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ISSN 1328-8091
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