Bills Digest no. 113 2005–06
Age Discrimination Amendment Bill 2006
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
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Age
Discrimination Amendment Bill 2006
Date introduced: 29 March 2006
House: House of
Representatives
Portfolio: Attorney-General
Commencement: Royal Assent
To amend the Age Discrimination Act 2004 in order to
specify a limited number of Commonwealth Acts and regulations that
will include exemptions from the provisions of age discrimination
legislation.
Subsection 39(2) of the Age Discrimination Act 2004
(the Act) provides for an exemption of all Commonwealth Acts and
regulations for two years from the commencement of the Act. This
exemption expires on 23 June 2006. The blanket exemption was made
in order to provide time for Commonwealth Departments to review the
age criteria in the laws and programs that they
administer.(1)
At the time the Act was passed, the Council on the Ageing
commented on the width of the exemptions given to the Commonwealth,
which they described as demonstrating the Commonwealth s own
reticence in embracing its own age discrimination laws . The
Council expressed its concern that, by taking this approach, the
Commonwealth provides a negative role model to the community
.(2) This Bill will reduce the number of Commonwealth
laws and regulations that are subject to an ongoing exemption from
age discrimination legislation.
The Commonwealth and all States and Territories have enacted
laws that make discrimination on the grounds of age
unlawful.(3) Discrimination is defined to include both
direct and indirect forms.(4) Under Commonwealth
legislation it is unlawful to discriminate against a person on the
grounds of their age or age group in many areas of public life
including employment, the provision of goods, services and
facilities, education, accommodation, access to premises, and the
administration of Commonwealth laws and programs. The Act is
administered by the Human Rights and Equal Opportunity Commission
(HREOC) where the Sex Discrimination Commissioner, Ms Pru Goward,
is also the Commissioner responsible for Age Discrimination.
The Act commenced in June 2004, and in the first year of its
operation HREOC received 78 complaints. These made up six per cent
of the total number of complaints handled by HREOC.(5)
Ten (or 13 per cent) of the complaints received under the Age
Discrimination Act were from people aged between 15 and 24 years;
eighteen complaints (23 per cent) were from people aged between 45
to 54 years; twenty complaints (25 per cent) from people aged 55 to
64 years; and a further ten complaints (13 per cent) from people
aged older than 65 years.
Complaints relating to employment made up 73 per cent of the
total. Other areas about which complaints were received included
the provision of goods, services and facilities (18 per cent of the
total), superannuation and insurance (3 per cent), and the
administration of Commonwealth laws and programs (also 3 per
cent).(6) Forty nine complaints were finalised by HREOC
during the first year of the Act s operation. Of these, twenty one
were finalised through conciliation.(7) Under the
regulatory model established by the Act, the claims procedure
starts with investigation and conciliation by HREOC and can
progress to the Federal Court or Federal Magistrates Court for a
hearing and enforceable remedies.
One case of alleged age discrimination has received considerable
press attention recently. In October 2005, the Anti-Discrimination
Tribunal Queensland found that older applicants for positions of
flight attendants with Virgin Blue between 2001 and 2002 were
treated less favourably than younger ones. The case arose when
eight former Ansett flight attendants, aged between 36 and 56,
applied for jobs with Virgin Blue during a 2001 recruitment drive.
The Queensland Tribunal found that the eight women were not
employed because young assessors unconsciously preferred people of
their own age over older people in a workplace that encouraged
youth and beauty , or Virgin flair . Virgin flair was described as
a desire to create a memorable, positive experience for customers.
The ability to have fun, making it fun for the customer
.(8) Tribunal member Douglas Savage SC said that
inevitably a danger of employing the behavioural competencies
system,(9) especially as it required an assessment of
Virgin flair was to identify with persons of the same age and
experience as the assessors, or what the assessors regarded as, if
not of the same age, a fun person. That person was I think likely
to be a person of the same age, social class and life experience as
the assessor .(10) He found that from September 2001 to
September 2002 only one person aged 36 years was employed by Virgin
Blue from over 750 people at or above that age who applied for a
cabin crew position.(11) He found that while the
assessment criterion was not biased, the assessors applying it
were.(12)
Differential treatment on the basis of age occurs in all areas
of public life, and some of this treatment can be regarded as
beneficial. Differential treatment on the ground of age that is not
considered unfavourable is reflected in the various exemptions
specific to age contained in anti-discrimination legislation. The
Commonwealth Act already includes, in Division 4 of Part 4, a range
of exemptions that make allowances for legitimate distinctions
based on age. The Act permanently exempts acts done in direct
compliance with a number of Commonwealth Acts and
regulations,(13) the administration of migration and
citizenship legislation(14) and membership of
superannuation funds or schemes.(15) In addition, when
it passed in 2004, the Act included a two year exemption for
anything done in direct compliance with any other Commonwealth Act
or regulation.(16) The purpose of this Bill is to
specify which Commonwealth legislation is exempt from the
provisions of age discrimination legislation, now that the two year
exemption is due to expire on 23 June 2006. According to the
Minister s second reading speech:(17)
[t]he bill is the result of a comprehensive
assessment of Commonwealth laws and programs that examined their
consistency with the Age Discrimination Act. As well as Acts and
regulations, this assessment identified other instruments, schemes
and programs that use age-based criteria for sound policy reasons.
It also identified areas where the scope of the existing exemptions
is uncertain or needs to be adjusted. The Bill addresses these
additional issues.
In summary, the proposed exemptions in this bill cover acts done
in direct compliance with specific Commonwealth Acts and
regulations, or specific parts of Acts and regulations, relating
to:
- certain Commonwealth employment programs (proposed section
41A)
- classification of films, computer games and literature
(Schedule 2)
- the duration and cost of passports (Schedule 2)
- health insurance rebates (Schedule 2)
- the serving of documents (proposed subsection 39(9)), and
- eligibility for certain government programs (proposed
subsections 41(2AA), 41(6))
Not all exemptions from age discrimination legislation are
welcomed by the public. One item that has been commented on in the
press,(18) concerns the specific exemption for taxation
laws provided by section 40 of the Act.(19) Subsection
27F(1) of the Income Tax Assessment Act 1936 (ITAA36)
provides that workers over 65 who are made redundant do not qualify
for the concessionally taxed component of a bona fide redundancy
payout. Apparently the age clause was inserted into the ITAA36 in
the mid-1980s as an anti-avoidance measure. It was designed to stop
people who were simply retiring at pensionable age from accessing
the tax-free redundancy payout .(20) However, these days
some workers are continuing to work beyond their 65th
birthday and the Government, when releasing its intergenerational
report with the 2002 federal budget, said it wanted to encourage
people to work as long as possible. A tax partner with KPMG, Martin
Morrow, is quoted as saying [t]hese people won t get the tax-free
component unless that requirement in the legislation is changed .
David Deans, chief executive of Australia s largest seniors
organisation, COTA National Seniors, is also reported as saying
that the law did not reflect the changing workplace and that it
certainly should be updated .(21)
According to the Explanatory Memorandum, this Bill is not
expected to have any financial impact.
The proposed amendments are dealt with in two Schedules.
Schedule 1 provides an exemption for acts done in direct compliance
with the whole of an Act, regulation or instrument. Schedule 2 is
more limited. It lists the parts of Acts, regulations and other
instruments where only specific provisions are exempted. According
to the Explanatory Memorandum, [p]rovisions are included in
Schedule 2 where an exemption is warranted, but where it is not
necessary or appropriate to exempt the complete Act, regulation or
instrument that contains the provision.
Items 1 and 2 provide examples
of positive discrimination meant to benefit young people.
Items 3 and 4 deal with
superannuation. The purpose of item 3 is to
clarify the scope of paragraph 38(1)(a) of the Act, to make it
clear that acts done in direct compliance with provisions that
relate to superannuation, but are part of an Act that generally
deals with some other subject matter, are exempt. The Explanatory
Memorandum provides the example of the Federal Court of
Australia Act 1976. Item 4 expands paragraph
38(1)(b) of the Act to exempt acts done in direct compliance with a
regulation or other instrument (or part thereof) that relates to
superannuation, whether or not the Act that the regulation or
instrument is made under is a Commonwealth Act relating to
superannuation.
Item 5 inserts proposed subsection
39(1A) that provides for the inclusion of a new schedule
of exemptions (Schedule 2). Schedule 2 will identify specific
provisions of Acts, regulations and instruments. Acts done in
direct compliance with those provisions will be exempt. Details of
the provisions are provided in item 15.
Item 6 provides an exemption relating to the
serving of documents. The intention is to allow other Commonwealth
laws to restrict the service of documents to a person apparently of
or above a particular age, most usually 16 years.
Items 7 and 8 address specific
Commonwealth programs; in the case of item 7, the
Farm Household Support Act 1992; and in the case of
item 8, the Veterans Entitlements Act
1986. Both apply age criteria in dealing with who is eligible
for benefits.
An exemption from anti-discrimination legislation is also
provided for certain employment programs which use age based
criteria (item 9). An exempted employment program
is defined in proposed subsection 41A(3). To be
classified as exempt, an employment program must meet at least one
of the five criteria enumerated in proposed paragraph
41A(3)(b). An employment program is exempt when:
- one of the intentions of the program is to address a need of
people in a particular age group
- the aim of the employment program is to alleviate the
disadvantage of particular age groups
- there is a requirement that participants enter into a legally
binding contract. It is government policy to protect young people
under the age of 18 years from entering into contractual
arrangements which may result in legal problems for them
- eligibility for the employment program is based on receipt of a
particular Commonwealth benefit or allowance type, or
- an employment program is limited to people who are not eligible
for particular allowances or benefits. The Explanatory memorandum
gives the example of a program that may be delivered solely to
people over 50 years, who are not in receipt of a benefit or
allowance, in order to help increase their workforce
participation.
Item 10 adds to Schedule 1 of the Act, four
legislative instruments that contain age specific provisions. All
deal with civil aviation and implement or reflect the international
standards for aviation safety and practices prescribed under the
Convention on International Civil Aviation. Similarly, two
new items relating to the national classification scheme for films,
computer games and literature are added by item
11.
Item 12 adds an exemption for acts done in
direct compliance with determinations made under section 58B of the
Defence Act 1903. These determinations deal with the pay
and conditions of members of the Australian Defence Force and seek
to limit the costs associated with adult children (over the ages of
18 or 21, depending on the circumstances) who choose to accompany a
member of the Defence Force on posting, or to live in a home for
which the member receives assistance from the Australian Defence
Force.
Item 13 provides an exemption for acts done in
direct compliance with seven Marine Orders made under the
Navigation Act 1912, all of which include age based
criteria. Most of them set minimum ages for obtaining certain
qualifications or for employment on vessels. According to the
Explanatory Memorandum, each of the Marine Orders substantially
reflects or implements existing or anticipated international
obligations.
Item 14 removes the Passports Regulations
1939 from Schedule 1 of the Act. The Regulations are no longer
in force.
Item 15 inserts a new Schedule
2 into the Act. This Schedule sets out the list of
specific parts of laws mentioned in proposed subsection
39(1A). Four of the provisions are designed to preserve
the long service leave entitlements of former public sector
employees whose employment was moved to the private sector under
the following Acts:
- Australian Meat and Live-stock Industry (Repeals and
Consequential Provisions) Act 1997
- Horticulture Marketing and Research and Development Services
(Repeals and Consequential Provisions) Act 2000, and
- Pig IndustryAct 2001.
The Explanatory Memorandum says that the specific provisions of
these Acts are modelled on section 17 of the Long Service Leave
(Commonwealth Employees) Act 1976 which treats people with
less than 10 years service differently, depending on whether they
have attained the minimum retiring age when they cease
employment.
Several other provisions deal with passports. Section 5.1 of the
Australian Passports Determination 2005 determines the
length of time that an Australian passport is valid. Under the
section, an ordinary adult passport is issued for a period of ten
years. However, a person aged 75 or over can choose to apply for a
passport of five or ten years validity. Section 5.1 also provides
that passports issued to children are only valid for five years.
This is to ensure that there will always be a sufficient
resemblance between the child and their passport photo. Lesser fees
are payable for passports that are valid for five years.
Another provision in Schedule 2 deals with
Parts 2 and 5 of the Private Health Insurance Incentives Act
1998. These parts provide for a private health insurance
rebate of 35 per cent for people aged 65-69 years, and a 40 per
cent rebate for people aged 70 years and over.
Regulation 8.10 of the Workplace Relations Regulations
2006 establishes a minimum age of 18 years for a person to be
appointed as a bargaining agent.
Concluding comments
Both major parties supported the substance of the Age
Discrimination Act when it was debated in 2004. Failure to pass
these amendments before 23 June 2006 would remove an exemption from
age discrimination legislation that is proposed for some
Commonwealth Acts, regulations, instruments, schemes and
programs.
- Revised explanatory memorandum, Age Discrimination Bill 2003,
p. 15.
- These comments are taken from the Council of the Ageing s
Submission on the Proposed Introduction of Federal Age
Discrimination Legislation given to the Select Committee on
Superannuation and reproduced at Appendix Five of the Committee s
report, Planning for Retirement, July 2003, p. 189. The
Council of the Ageing s full submission on the legislation can be
found at www.cota.org.au
.
- Age Discrimination Act 2004 (Cth); Discrimination
Act 1991 (ACT), s. 7(1)(1); Anti-Discrimination Act
1977 (NSW), Pt 4G; Anti-Discrimination Act 1992 (NT),
s 19(1)(d); Anti-Discrimination Act 1991 (Qld), s 7(f);
Equal Opportunity Act 1984 (SA), Pt VA;
Anti-Discrimination Act 1998 (Tas), s16(b); Equal
Opportunity Act 1995 (Vic), s 6(a); Equal Opportunity Act
1984 (WA), Pt IVB.
Under Commonwealth legislation there is a separate Act for each
ground of discrimination, that is, age, sex (including marital
status and pregnancy), race and disability. Each State and
Territory has one Act under which it is unlawful to discriminate on
a number of grounds.
Commonwealth age discrimination legislation is broadly
consistent with state and territory laws. ( See Explanatory
memorandum, Age Discrimination Bill 2003, p. 21.) Section 12
of the Act generally provides that the Commonwealth Act will not
limit or exclude the operation of state or territory age
discrimination law.
- Sections 14 and 15 define discrimination for the purposes of
the Act. Direct discrimination is defined generally, as a person
treated unfavourably on the basis of their age. Indirect
discrimination is defined generally, as the imposition of a
condition that has the likely effect of disadvantaging a person of
the same age as the aggrieved person.
- Human Rights and Equal Opportunity Commission, Annual
report 2004-2005, p. 65. During the debate on the
Act, it was anticipated that complaints made under the Age
Discrimination Act would constitute ten per cent of all complaints
handled by HREOC (see Senate Legal and Constitutional Legislation
Committee, Committee Hansard, 9 September 2003, pp. 17
18.)
- Human Rights and Equal Opportunity Commission, Annual
report 2004-2005, p. 73.
- ibid., p. 74.
- Hopper & Others v. Virgin Blue Airlines Pty Ltd,
Anti-Discrimination Tribunal Queensland, 2005, p. 6.
- From the Court transcript it appears that applicants were asked
to role play in a hypothetical situation and their behaviour in
that situation was assessed.
- Hopper & Others v. Virgin Blue Airlines Pty Ltd,
Anti-Discrimination Tribunal Queensland, 2005, p. 15.
- ibid., pp. 11 12.
- Jason Gregory, Virgin ruling a victory for older flight
attendants , Courier Mail, 11 October 2005, p.
3.
- Age Discrimination Act 2004 (Cth), ss 39(1), 41.
- Age Discrimination Act 2004 (Cth), s 43.
- Age Discrimination Act 2004 (Cth), s 38.
- Age Discrimination Act 2004 (Cth), s 39(2).
- Hon Philip Ruddock (Attorney-General), Second reading speech,
Age Discrimination Amendment Bill 2006 , House of Representatives,
Debates, 29 March 2006, p. 3.
- Peter Weekes, Tax slug awaits those sacked over 65 , The
Age, 28 November 2005, p. 2.
- Section 40 of the Age Discrimination Act refers to taxation
laws and includes both the Income Tax Assessment Act 1936
(ITAA36) and the Income Tax Assessment Act 1997 (ITAA97).
The journalist writing the article may have been misled by the
mention of ITAA97 in the Act and not realised that section 40 gives
a specific exemption for taxation laws generally. The conclusion
that ITAA36 is one of the Acts that has only a two year exemption
from age discrimination legislation, is not correct.
- Peter Weekes, Tax slug awaits those sacked over 65 , The
Age, 28 November 2005, p. 2.
- ibid.
Rosemary Bell
3 May 2006
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