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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
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
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