Abolition of Compulsory Age Retirement (Statutory Officeholders) Bill 2001


Numerical Index | Alphabetical Index

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

Passage History

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Commencement: Subject to two exceptions for provisions which will be repealed if other legislation has commenced before this Bill,(1) 28 days after Royal Assent.

Purpose

To abolish compulsory age retirement for a range of Commonwealth statutory officeholders.

Background

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)

Main Provisions

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

Endnotes

  1. 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.

  2. Bronwyn Bishop, 'Population ageing and the economy', CEDA Bulletin, July 2001, p. 42.

  3. Bronwyn Bishop, 'Population ageing and the economy', CEDA Bulletin, July 2001, p. 44.

  4. 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.

  5. 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.

  6. Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992.

  7. 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.

  8. 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.

  9. 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.

  10. 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).

  11. Articles 6 and 7 of the ICESCR.

  12. Article 2 of the ICCPR, Article 2 of the ICESCR.

  13. The text of this Convention, but not the accompanying recommendation, is annexed as Schedule 10 to the Workplace Relations Act 1996.

  14. 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.

  15. 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.

  16. 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.

  17. 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.

Contact Officer and Copyright Details

Katrine Del Villar
7 September 2001
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 2000

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 2001.

Back to top


Facebook LinkedIn Twitter Add | Email Print
Back to top