COTA National Seniors Partnership Response To The Proposed
Commonwealth
Age Discrimination Legislation
FEBRUARY 2003
Contents
- Introduction to COTA National Seniors
- Background to this submission
- COTA National Seniors policy position
- Response to the specific questions raised in the Information
Paper
- Footnote References
COTA National Seniors is the largest seniors federation in Australia with
more than 270,000 individual members and over 1500 seniors organisations under
its umbrella. It offer members a vast range of services and benefits and an
influential vehicle for contributing to policy debates affecting older people
in Australia.
The Partnership, effective from 11 December 2002, joins the State and Territory
COTAs, COTA Membership Services and Council on the Ageing (Australia) with
National Seniors into a joint national operation that will merge and share
various operations of the eleven organisations.
With its combined individual and organisational membership representing all
aspects of Australian seniors interests, COTA National Seniors Partnership
has a pre-eminent role in representing, advocating for and serving older people
throughout Australia.
In terms of policy, it adheres to four principles.
Policy Principle 1: maximising the social and economic participation
of older Australians.
The Partnership seeks to maximise opportunities for social and economic participation
by older Australians, including promoting positive approaches to the contribution
of seniors and the ageing of the Australian population, and by breaking down
age discrimination in all areas of social and economic life.
Policy Principle 2: promoting sustainable, fair and responsible policies
The Partnership is committed to the development of fair and sustainable policies
for seniors that take account of the needs of the entire community in the
short and long term. It develops policies which are fiscally and economically
responsible and which fairly balance the competing needs and interests of
diverse groups amongst the senior population and other sectors of the community.
Policy Principle 3: protecting and extending services and programs that
are used and valued by older Australians
The Partnership develops policies and provides advice on maintaining and
improving services and programs which seniors use and value. These include
primary health care, hospitals, pharmaceuticals, employment services, utilities,
public transport, residential care, housing and community care. It will seek
to ensure that there is an adequate "safety net" of services and
income support which all seniors can access according to fair and equitable
criteria in order to maintain a reasonable quality of life.
Policy Principle 4: focus on protecting against and redressing disadvantage
The Partnership believes that all seniors have the right to security, dignity,
respect, safety, high standards of treatment and care and to equal participation
in the community regardless of income, status, background, location, frailty
or any other social or economic factor. As a result we will have a strong
focus on seniors who are most vulnerable or disadvantages in terms of these
criteria.
One of the core aims of the COTA National Seniors is to ensure that older
Australians have the maximum opportunities for social and economic participation.
Elimination of age discrimination is central to this goal and we thus welcomed
the Prime Minister's pre 2001 election commitment to introduce age discrimination
legislation.
In December 2002 The Attorney General released an information paper (1)
on the Commonwealth government's proposed legislation and invited
comments on the proposals. This submission is our response to that invitation.
In 1999, The Human Rights and Equal Opportunity Commission made 14 recommendations
(2) regarding age discrimination following extensive research
and consultation. The report and its recommendations were, and continue to
be, strongly supported by this organisation.
The Australian Government has agreed under international law to eliminate
discrimination on a number of grounds, including age. These international
treaties include the Discrimination (Employment and Occupation) Convention
or ILO 111, the International Covenant on Civil and Political Rights
and the International Covenant on Economic, Social and Cultural Rights.
There are also treaties and declarations which demonstrate our special responsibilities
to ensure that children's and older people's rights are respected.
In the years ahead with Australia's ageing population, there will be an ongoing
debate about the distribution of public resources and economic opportunities
between generations. Age discrimination legislation will play a significant
role in asserting an ongoing commitment by the Commonwealth to decision-making
that is free from age-related bias in this arena. This is particularly important
in areas including:
- Access to health care under conditions of limited resources and budget
constraints.
- Access of older people to higher education and other training opportunities.
With a rapidly changing labour market, it will be increasingly important
for mature age people to be able to acquire necessary skills.
- Adoption of new technologies and expectations around the use of these
new technologies. Older people could quickly find themselves on the margins
of society and the economy as a result of the widespread and rapid adoption
of new technologies in a wide range of contexts.
Age discrimination is deeply entrenched in Australian society. Many current
attitudes and practices are based on outdated notions of age and of older
people. They do not recognise the rapid rise in life expectancy in recent
years, the greatly improved health status of mature age people and the changing
nature of many areas of life that makes decision-making based on chronological
age archaic. Furthermore, they ignore the fact that mature age people have
a different set of expectations of later life and retirement than those of
people a generation ago.
Age discrimination has social and economic costs that are borne by individuals
and the community as a whole. On an individual level, older people suffer
loss of self-esteem, with its consequent deleterious mental and physical health
effects including depression and suicide, as a result of discrimination and
stereotyping. Premature departure from the workforce and discriminatory selection
decisions have devastating effects for retirement saving. Quality of life
is diminished for older people as the pernicious effects of age discrimination
take their toll.
At the community level, it is clear that Australia needs to maximise its
resources and productive capacity to meet the challenges ahead. One of the
consequences of the ageing general population is that growth in the labour
force will decline over the next 50 years and, in the case of some Australian
states, there will be negative growth in the labour force for periods during
the coming years. Access Economics (3) has stated:
Given the already high workforce participation by people aged
20 - 54, the only
avenue for ensuring sufficient supply of labour is to encourage higher participation
by the population aged 55-70 (emphasis added) (4)
Increasing the workforce participation rates of older people will require
attitudinal shifts and robust anti age discrimination legislation.
... Australian society must undergo major attitudinal change
with policies comprehensively embracing a positive approach to older people
and ageing.(5)
Our policy position on age discrimination is clearly stated in the COTA (Australia)
September 1999 response to the Human Rights and Equal Opportunity Commission's
Age Matters: A Discussion Paper on Age Discrimination (www.cota.org.au/agediscrim.htm
).
That submission concluded that:
COTA supports the enactment of federal age discrimination legislation
to complement existing State and Territory legislation and to fill gaps
in existing Commonwealth legislation. We believe that this will be an important
step forward in redressing age discrimination in the community.
COTA also believes that the following will be important elements in
the success of the legislation:
- The Act will need to be administered by its own Commissioner and
will need adequate staff and resources.
- An Age Discrimination Act will need to be linked to a well resourced
and concerted public education campaign both about the Act and age discrimination.
- Amendments to other federal laws which embody discriminatory provisions,
following a review of all Commonwealth legislation.
- The new arrangements in regard to enforceable determinations through
the Federal Court need to ensure that complainants are not disqualified
from taking cases forward due to cost or other barriers.
In addition we advocate:
- An evaluation and review of the implementation of the Act should be
undertaken and report to Parliament within 5 years.
In a number of important respects the proposed legislation is neither consistent
with our policy position nor with the recommendations and findings of the
Human Rights and Equal Opportunities Commission.
In addition to the specific concerns we have expressed above, the proposal
is disappointing in the following respects:
Leadership is required to change entrenched attitudes and behaviours. Any
public education campaign will be undermined by the Commonwealth's own reticence
in embracing its own age discrimination laws. The Commonwealth must demonstrably
support this legislation by minimising exemptions. The default setting
should be that the age discrimination legislation will apply and that exemptions
will be minimised and exceptional.
The proposed legislation perpetuates and supports age discrimination. Chronological
age should not be used as a proxy measure for competence. All Commonwealth
legislation and regulations should be reviewed and amended to eliminate their
discriminatory provisions. Good cause must be shown in cases where age is
maintained as a criterion for denial of access to an opportunity available
under federal law. Exemptions should be the rare exception, not the rule.
Age discrimination must not be the "poor cousin" within the Human
Rights and Equal Opportunity Commission - it must be viewed as being equally
important as all other forms of discrimination. The Act will need to be administered
by its own Commissioner, and adequate resources must be made available for
public education and other supporting measures. Again, this will demonstrate
the government's commitment to this legislation.
The new arrangements in regard to enforceable determinations through the
Federal Court need to ensure that complainants are not disqualified from taking
cases forward due to cost or other barriers. Older people may well
be discouraged from seeking redress through the Federal Court due to costs
and other barriers. The proposed legislation does not address this issue.
Additionally, a whole of government approach is needed to address age discrimination.
Individual departments should not be allowed to maintain discriminatory practices
through seeking exemption for each "special case" as the result
will be that the many and various exemptions will undermine the totality of
the legislation and its intent. The Commonwealth government needs to be seen
to lead by example.
We endorse the conclusion of the Victorian, South Australian and Western
Australian Equal Opportunity Commissions and the Australian Employers Convention
that:
These issues cross-cut portfolios... To successfully address structural
barriers (to age discrimination) the restrictive boundaries of individual
portfolios must be overcome (6)( Parenthesis added.)
And the comments of Age Concern England:
The action of government departments in tackling age discrimination
themselves will be an important part of the tone and approach of Government.
If government departments are perceived to be reluctant in their approach,
and/or arguing for exemptions, this is likely to impede the effectiveness
of measures designed to combat discrimination in employment and health and
social care. The government will need to be seen as leading by example.(7)
- The Government proposes that the legislation define age discrimination
as including direct discrimination and indirect discrimination.
- Response: Agreed.
The Government notes that the Human Rights and Equal Opportunity Commission
would have the power to issue guidelines on aspects of the legislation and
that a practical guide to compliance with the indirect discrimination provisions
would be useful for employers.
- Response: Agreed, but HREOC will need to be adequately resourced
to develop and disseminate the guide. The government has not indicated that
such resources will be made available.
The Government proposes that the ground of age include:
a) a characteristic that is generally imputed
to a person of that age, and
b) a characteristic that generally appertains to a
person of that age.
- Response: Agreed
The Government proposes the Bill should include ‘age group' within
the ground of age. Whether this will need express reference in the Bill
will be a drafting issue.
- Response: Agreed
The Government invites further comments about whether discrimination
on the ground of age should extend to the age of the person's associate
or relative.
Response: It is important that the legislation
be extended to cover the age of a person's associate or relative in order
to protect people who are caring for an older person from being discriminated
against. Without this extension it will be possible, for example, to refuse
employment to a person on the grounds that she/he has a spouse whom the
prospective employer considers will require care because of his/her age.
Similarly, credit could be refused on these grounds. A person should not
be denied an opportunity because of the age of her/his associate or relative.
This right should be protected by this legislation.
The Government proposes that the age discrimination legislation should
not create a second or alternative avenue for complaints of disability discrimination
where such complaints are properly covered by the Disability Discrimination
Act 1992. Complaints of age discrimination that would also be covered by
the Disability Discrimination Act should be dealt with under the legislative
regime established by that Act.
Response: Agreed
The Government proposes that the legislation should (subject to appropriate
exemptions as set out below), prohibit discrimination on the basis of age
in relation to work; access to goods, services and facilities; access to
premises, places and transport; Commonwealth laws and programs; education;
accommodation; land; and requests for
information.
Response: Training should be added. There are many
examples of discrimination against older people by employers who do not
provide equality of access and opportunity in training, with resultant detrimental
effects on career prospects.
As to the appropriateness of the exemptions set out below - refer to our
general comments on chronological age as a proxy measure, the need for leadership
and elimination of exemptions and specific comments below.
- The Government proposes that the prohibition on age discrimination
in work cover applicants and employees, commission agents, contract workers,
partnerships, industrial organisations, qualifying bodies and employment
agencies, in a similar manner to existing Commonwealth and State anti-discrimination
laws.
Response: Agreed, subject to the term industrial
organisations including professional associations – i.e. no person
should be denied membership of a professional association (which may be
a requirement for continuation of her/his occupation) on the grounds of
age.
The Government proposes that the legislation define employment consistently
with existing Commonwealth anti-discrimination legislation.
Response: Agreed
The Government invites further comments on whether it is appropriate
to extend the definition of employment to include any form of unpaid work.
Response: The legislation should apply equally to unpaid/volunteer
work, but this should not necessarily be by extension of the definition
of employment. Voluntary work is very important to seniors. There is no
justification for limiting access to voluntary work on the grounds of age.
Age discrimination in voluntary work should be specifically prohibited in
the legislation.
The Government proposes that contract workers should be covered in the
age discrimination legislation to the same extent as existing Commonwealth
anti-discrimination laws.
Response: Agreed
The Government has decided that the legislation will include an exemption
that maintains the Government's existing policies about youth wages. This
will allow employers to continue to pay youth wages for young workers under
industrial awards and workplace agreements, and to advertise and select
for youth wages positions accordingly.
Response: No comment. This is a matter for
youth sector organisations.
The Government proposes that the legislation will include an exemption
which maintains the Government's existing policies about job training, allowing
Government work experience and community work programs, such as the ‘Work
for the Dole' scheme, to continue.
Response: If these policies can be justified on the
grounds of positive discrimination, there is no need for a specific exemption
for them. If they cannot be justified on these grounds, they are discriminatory
and should be disallowed subject to the legislation.
The Attorney-General's Department is consulting with the Department
of Employment and Workplace Relations about the possibility of information/advocacy
services for younger workers.
Response: This is a good example of the way age discrimination
permeates society. Older workers also require information and advocacy services,
but have been overlooked. In our experience, older workers desperately need
information and advocacy services. The Attorney General's Department should
consult DEWR about the possibility of information/advocacy services for
older workers.
The Government proposes that the legislation contain a general exemption
for age discrimination in relation to employment that is based on the ‘inherent
requirements' of the job. The provision should be supplemented by a list
of situations where age is an inherent requirement of the position (such
as the provision of welfare services to people of a particular age group
by a person of the same age), with the condition that such a list would
not limit the generality of the exemption.
Response: Applications for exemption on the grounds
of "inherent requirements" or "genuine occupational requirement"
should be made to the Commissioner, who, acting within the intent of this
legislation, may decide whether exemption is justified and may be granted.
A list of determinations should be available to people considering applying
similar to that provided by the ATO.
The Government proposes that the legislation include an exemption for
acts done in compliance with the provisions of industrial awards and workplace
agreements, subject to further consideration about the extent of coverage
of acts that are permitted but not required by awards or agreements. The
Government invites comments on this matter.
Response: Existing Awards and Workplace Agreements
should not be assumed to be non-discriminatory. A two year phasing-in period
should be allowable in order for existing awards and agreements to be reviewed
and revised to ensure that they comply with this legislation.
The Government proposes that the legislation include ‘vicarious
liability' provisions. Vicarious liability provisions attribute acts of
discrimination done by employees or agents in the course of their employment
to the employer unless the employer took all reasonable steps to prevent
the employee or agent from doing the act in question.
Response: Agreed
The Government proposes that the legislation include an exemption for
domestic employment.
Response: Agreed
Bearing in mind that the superannuation system is constantly under review,
the Government proposes that the age discrimination legislation should exempt
superannuation schemes operating under Commonwealth superannuation and related
legislation.
Response: We disagree. The fact that the superannuation
system is constantly under review is insufficient justification for this
broad and sweeping exemption.
According to Age Matters (8):
Each law should be reviewed to determine whether any age based distinctions
are justifiable, or whether it should be amended to eliminate its age discriminatory
intent or effect.
We support recommendation 12 (9),
which specifically refers to a raft of superannuation legislation which
should be remedied:
- The Superannuation Industry (Supervision) Act 1993 should be amended to
remove the restriction on superannuation funds accepting contributions in
respect of members after they reach a certain age.
- The Superannuation Industry (Supervision) Regulations should be amended
to remove the requirement that benefits must be compulsorily cashed out
when members reach a certain age unless employment tests are met.
- The requirement that members over 70 must be gainfully employed or compulsorily
cash out their benefits should be reviewed and alternative means of limiting
indefinite deferral of tax treatment explored.
- The Superannuation Guarantee (Administration) Act 1992 should be amended
to remove age distinctions (whether young or old) in the requirement for
employers to make superannuation contributions for employees.
- All age distinctions in superannuation and related legislation should
be evaluated for their necessity in achieving the objectives of superannuation.
A number of matters under Commonwealth superannuation law are clearly discriminatory
and should be abolished:
- From 1 July 2002, working people aged 70 or over but less than 75 are
able to continue to make contributions to superannuation, if they are working
at least 10 hours per week. This recognises that they may choose to work
past the age of 70. This change to legislation is one of the election commitments
announced by the Government on 5th November 2001 as part of A
Better Superannuation System.
While we agree with this upward revision of the age limit, we consider that
this provision remains discriminatory and disadvantages some seniors. Some
people remain in the workforce beyond the age of 75, and they should not be
discriminated against. Furthermore, the requirement to work at least 10 hours
each week discriminates against people who work sporadically or other than
in regular patterns. These matters should not be ignored by granting an exemption
to superannuation.
- The superannuation guarantee (SG) arrangements do not apply to employees
70 years of age or over. An employer can only pay SG contributions after
an employee turns 70 if they relate to salary paid before the employee turned
70. Exempting people over 70 years of age from eligibility for superannuation
guarantee contributions by their employers is discriminatory. No age limit
should apply. These matters should not be exempt from the age discrimination
legislation.
- Persons aged 70 or over are not entitled to a tax deduction for superannuation
contributions unless the contribution has been made within 28 days of the
end of the month in which they turned 70 years old. This discriminates against
older people who may wish to continue making superannuation contributions
to provide for themselves in their older age. No age limit should apply.
- Persons aged 70 or over cannot claim the Government
co-contribution to superannuation for low-income earners. This age limit
should be abolished as it unfairly discriminates against older workers.
The exemption proposed for superannuation schemes operating under Commonwealth
superannuation and related legislation is not supported.
- The Government proposes that the superannuation exemption should extend
to superannuation schemes not regulated under Commonwealth superannuation
legislation, such as Exempt Public Sector Superannuation Schemes which agree
to adhere to the principles of Commonwealth superannuation policy.
Response: As above – age discrimination in
superannuation should not be exempt from the legislation.
The Government proposes that the legislation include an exemption for
superannuation to cover age discrimination based on statistical or actuarial
data on which it is reasonable to rely, and other relevant factors (which
includes ‘other data').
Response: Agreed, in respect to statistical and
actuarial data... but Other relevant factors is a very broad
and subjective expression. Provision has been made for the legislation to
confer on HREOC the power to grant exemptions in particular cases. This
provision should be applied rather than allowing for "other relevant
factors" to be accepted as grounds for exemption.
The Government proposes that the legislation include an exemption relating
to insurance similar to the Disability Discrimination Act, which states
(s.46) that discrimination is not unlawful if it:
- is based upon actuarial or statistical data on which it is reasonable
to rely, and
- is reasonable having regard to the matter of the data and other
relevant factors, or
- in a case where no such actuarial or statistical data is available
and cannot reasonably be obtained, the discrimination is reasonable having
regard to any other relevant factors.
Response: As above - "Other relevant factors"
is a very broad and subjective expression. Provision has been made for the
legislation to confer on HREOC the power to grant exemptions in particular
cases. This provision should be applied rather than allowing for "other
relevant factors" to be accepted as grounds for exemption.
The Government will consider whether a definition of insurance is needed.
Response: In our opinion, insurance should be clearly defined
in the Act.
The Government notes that the proposed insurance exemption in the legislation
will cover discrimination based on ‘other data', as does the insurance
exemption in the NSW Act. However, there is no need to refer to ‘other
data' in the exemption relating to insurance as it is encompassed in the
expression ‘other relevant factors'.
Response: We oppose the inclusion of the vague expression,
"other relevant factors."
The Government proposes that the legislation include an exemption for
age discrimination in the provision of credit (including all forms of lending)
where the criteria on which an application for credit is assessed, or the
terms on which credit is offered, are based on actuarial or statistical
data on which it is reasonable to rely and are reasonable having regard
to the data.
Response: Capacity to pay rather than chronological
age should determine eligibility for credit. The current practice of the
credit industry is that points based assessment is made of an applicant's
ability meet the terms of credit. Exemption for age discrimination is unnecessary.
Should credit providers wish to do so, they may apply to the Commissioner
for an exemption in a particular case.
The Government proposes that age discrimination in relation to health
and medical goods and services should be covered under the general prohibitions
of discrimination in the proposed legislation, in relation to ‘goods
and services' and ‘Commonwealth laws and programs', in a similar fashion
to existing anti-discrimination legislation.
Response: We disagree. Health and
medical services must be specifically named in the Act and discrimination
on the grounds of age expressly prohibited.
Age discrimination in health care is a matter of particular concern to older
people. UK research shows that upper age limits have been imposed for a
range of health and medical services, including heart bypass operations
and kidney dialysis (10) by the National Health Service.
Age Concern England's 1999 report set out a number of cases of substandard
care that clearly demonstrated age discrimination against older people.(11)
This is unacceptable and should be clearly and specifically prohibited in
the legislation.
We endorse the view of the South Australian Commissioner for Equal Opportunity
(12) that:
Health resources are increasingly the focus of public debate. Age should
not be a criterion for deciding who should receive treatment. Discrimination
on the grounds of age in the provision of medical services may be a ground
for a complaint under EOA and should be included in any Federal age discrimination
legislation.
The Government proposes that, in relation to health regulation and programs,
the legislation should include an exemption to cover acts that are reasonably
based on clinical, medical or scientific evidence, that was reasonably available
at the time, concerning such matters as safety, effectiveness, risks, benefits,
health needs, and other considerations of differential impacts for people
of a particular age or age group.
Response: We question whether this exemption is necessary?
It appears unlikely that the courts would find against a person or organisation
that had acted - reasonably based on clinical, medical or scientific
evidence, that was reasonably available at the time, concerning such matters
as safety, effectiveness, risks, benefits, health needs, and other
considerations of differential impacts for people of a particular age or
age group. If the courts would not be likely to so find, this
paragraph is redundant.
If this section is intended to provide for positive discrimination, it is
unnecessary as positive discrimination is allowable under a separate provision
of the proposed legislation.
The Government proposes that, in relation to individual clinical decisions,
the legislation should provide an exemption to cover the inclusion of age
as a factor in the reasonable exercise of professional judgement based on
reasonably available evidence and professional knowledge about the ability
of a person of the relevant age to benefit from the treatment involved.
Response: We disagree. Age discrimination in health
care is a matter of particular concern to older people – refer to
our earlier comments. If this section is intended to provide for positive
discrimination, it is unnecessary as positive discrimination is allowable
under a separate provision of the proposed legislation.
The Government proposes that the legislation should have the effect
of preserving Community Rating.
The Government proposes that the legislation should have the effect
of preserving Lifetime Health Cover.
The Government notes that the proposed exemption in relation to
general insurance, for discrimination based on actuarial or statistical
data etc, will also apply to health insurance.
Response: Agreed.
The Government proposes that the legislation specifically exempt the
Migration Act 1958 and the Migration Regulations 1994 and actions under
these laws.
Response: We disagree. There are no grounds for this
blanket exemption. Decisions in relation to migration should be based on
criteria other than chronological age. Using age as a proxy measure for
suitability to migrate is not justifiable.
HREOC recommendation 8 (13) states: The Migration Regulations
should be amended so that age is not used as an eligibility criterion for
work-related visas.
The Government proposes that the legislation specifically exempt the
Australian Citizenship Act 1948 and the Immigration (Education) Act 1971.
Response: We disagree. There are no grounds for this blanket
exemption. Decisions in relation to Citizenship and Immigrant Education
should be based on criteria other than age. Older migrants are discriminated
against in denial of access to English language courses. The legislation
should apply to prevent this and other discriminatory practices continuing.
The Government proposes that the legislation specifically exempt the
Social Security Act 1991 and related legislation (including family assistance
payments, child support legislation and the Disability Services Act 1986).
The Government proposes that the legislation specifically exempt the Veterans'
Entitlements Act 1986 and related legislation.
Response: Agreed. However, we are concerned that various elements of
social security policy are discriminatory and penalise older people by limiting
access to benefits such as childcare allowances and study assistance. These
matters should be referred to the department for review.
The Government proposes that the age-based provisions in defence legislation
and subsidiary instruments should be exempt from the proposed age discrimination
legislation.
Response: We disagree. Employment in the defence
forces should be subject to the same legislative requirements as elsewhere.
Employment decisions should be based on ability and competence to perform
the required work rather than using chronological age as a proxy measure.
Should defence occupations have some "inherent requirements",
they may be specifically exempted by application to the Commissioner (under
our proposal above).
The Government proposes that the legislation exempt discriminatory acts
done in order to directly comply with other Commonwealth laws listed in
Attachment E, but that
these exemptions (other than the specific exemptions proposed above in relation
to migration, citizenship, social security and veterans' affairs) be reviewed
two years after the commencement of the age discrimination legislation.
The Government also proposes to exempt all remaining Commonwealth laws for
a two year period to ensure that any laws containing age criteria are identified
and either exempted or amended as appropriate.
Response: We disagree.
Attachment E is very extensive indeed. A number of the provisions of Commonwealth
Acts are clearly discriminatory, while others appear to be archaic, having
been in place since the Australian constitution was adopted in 1901. We
suggest that many of these provisions are unsustainable when subject to
rational analysis. These matters should be dealt with by amending the relevant
legislation and/or regulations rather than by blanket exemption.
A number of these provisions should be amended immediately, while others
should have a shorter timeframe for review than the two years proposed in
order to replace age based criteria with competence to perform the required
tasks.
The Attorney-General will consult with relevant Ministers to develop
proposals concerning the operation of the proposed legislation in relation
to laws and programs concerning Indigenous Australians.
Response: Agreed. HREOC should be actively involved
in this process.
The Government proposes that the legislation exempt admission to educational
institutions where the level of training is provided only for students above
a particular age.
Response: Agreed
The Government proposes that the legislation exempt discrimination in
relation to accommodation where the person providing the accommodation or
a near relative resides on the premises and where the accommodation is for
a small number of people.
Response: Agreed
The Government proposes that the legislation should not seek to prevent
discrimination that arises from any testamentary disposition or by way of
gift.
Response: Agreed
The Government proposes that the legislation include a provision that
makes it unlawful for a person to cause, instruct, induce, aid or permit
another person to do an unlawful act under the proposed age discrimination
legislation, similar to the relevant prohibitions in the Racial Discrimination
Act and the Sex Discrimination Act.
Response: Agreed
The Government proposes that the legislation include an exemption for
‘positive' age discrimination, to allow acts that are consistent with
the purposes of the legislation, in order to provide bona fide measures
for the benefit of persons of a particular age or age group; or to meet
a need that arises out of the age or ages of those persons; or to prevent
or reduce a disadvantage experienced by people of a particular age or age
group
Response: Agreed – this provision eliminates
the necessity for many of the exemptions that have been suggested in the
discussion paper. If policies and programs demonstrably exist to positively
discriminate in favour of persons of a particular age group, they do not
contravene the intent of the legislation.
The Government proposes that the legislation include a general exemption
for acts of discrimination necessary to comply with State or Territory laws,
with the power to prescribe exceptions to the exemption.
Response: Agreed, although uniformity of State/Territory
and Commonwealth legislation is desirable. COAG should consider this matter.
The Government proposes that the legislation include an exemption for
age discrimination in acts done in direct compliance with orders of a Commonwealth,
State or Territory court or tribunal.
Response: Agreed.
The Government invites comments on the need for and extent of any exemption
for religious bodies.-
Response: Applications for exemption on the grounds of "religious
practices" should be made to the Commissioner, who, acting within the
intent of this legislation, may decide whether exemption is justified and
may be granted. A list of determinations should be available to people considering
applying similar to that provided by the ATO.
The Government proposes that the legislation should exempt voluntary
bodies and charitable benefits in the same manner as in existing Commonwealth
anti-discrimination legislation.
Response: We disagree. Voluntary and charitable bodies
should not be exempt. This is particularly important in view of the extent
to which older people are involved in these organizations. Volunteering
forms a very important part of the lives of many older Australians, and
there should be no age limitation on individuals contributing in this way.
Provision has been made in the legislation for the Commissioner to grant
exemptions on a case-by-case basis. Voluntary and charitable bodies should
apply for exemption stating their grounds rather than receiving exemption
automatically.
The Government proposes that the legislation make it an offence to victimise
individuals who make, or intend to make, or otherwise support, a complaint
of age discrimination in a similar fashion to the offences for victimisation
under existing Commonwealth anti-discrimination legislation.
Response: Agree
The Government proposes that the legislation include an offence of advertising
that indicates an intention to discriminate on the basis of age in a way
prohibited by the legislation.
Response: Agree
The Government proposes that the legislation confer similar powers on
the Human Rights and Equal Opportunity Commission in respect of the proposed
age discrimination legislation as it does in respect of the Racial Discrimination
Act, the Sex Discrimination Act and the Disability Discrimination Act, that
is, public awareness and education; inquiries and conciliation in relation
to complaints of discrimination; and input to policy and legislative development.
Response: Agree. However, the ability of HREOC to engage in these
activities is clearly dependent upon resources available. We look forward
to an announcement from the government that adequate resources will be made
available.
The Government proposes that the legislation confer on the Human Rights
and Equal Opportunity Commission the power to grant exemptions in particular
cases.
Response: Agree. A list of determination should be
publicly available. We believe that this is a far better way to proceed
than granting exemptions wholesale.
The Attorney-General's Department and the Human Rights and Equal Opportunity
Commission will consult following enactment of the legislation about the
possibility of the Commission undertaking a review of the legislation after
a suitable period.
Response: The Government should consider including
within the legislation a mandatory review of the Act after two years of
operation.
After the legislation is in place, the Attorney-General's Department
will discuss in detail with the Human Rights and Equal Opportunity Commission
options for helping people with information about the age discrimination
legislation and access to complaints processes, having regard to the particular
needs of various groups of people including young people and older people.
Response: Agree. However, the ability of HREOC to
engage in these activities is clearly dependent upon resources available.
We look forward to an announcement from the government that adequate resources
will be made available. We reiterate our concerns regarding enforceable
determinations through the Federal Court. There is need to ensure that complainants
are not disqualified from taking cases forward due to cost or other barriers.
The government and HREOC must work together to resolve this issue.
The Government proposes that the legislation include similar provisions
to existing Commonwealth anti-discrimination laws covering the interaction
with State and Territory anti-discrimination laws and processes, such that
the Commonwealth legislation will not limit the operation of consistent
State anti-discrimination legislation; a matter that has already been the
subject of complaint under State anti-discrimination legislation cannot
be brought under the Commonwealth legislation; and a person cannot be penalised
more than once for an offence covered by both Commonwealth and State anti-discrimination
legislation.
Response: Agree
The Government proposes that the States and Territories be bound by
the age discrimination legislation, in the same way as under the Racial
Discrimination Act and the Disability Discrimination Act.- Response: Agree
5. Footnote references
- www.law.gov.au/ageinfopaper
- Age Matters: a report on age discrimination.
Human Rights and Equal Opportunity Commission, 2000. Accessed
at: http://www.hreoc.gov.au/pdf/human_rights/age_report_2000.pdf
- Population Ageing and the Economy, Access Economics, 2000 accessed
at http://www.health.gov.au/mediarel/yr2001/bb/bbsp010320.htm
- Access Economics, op cit
- Kendig, H and Duckett, S. Australian directions in aged care: the
generation of policies for generations of older people. Australian
Health Policy Institute Commissioned Paper Series 2001/05, University of
Sydney, 2001, p74
- The Victorian, South Australian and Western Australian Equal Opportunity
Commissions and the Australian Employers Convention. Age Limits: age-related
discrimination in employment affecting workers over 45. March 2001,
p23
- Age Discrimination Policy Position Paper. Age Concern England
September 2002, p9.
- Human Rights and Equal Opportunity Commission, op cit, p110
- Human Rights and Equal Opportunity Commission, op cit, p113
- Age Discrimination Policy Position Paper, Age Concern England,
2002, p2.
- Turning Your Back On Us. Age Concern, England, 1999
- South Australian Commissioner for Equal Opportunity. Submission No
32 to HREO's inquiry into age discrimination, p15
- Age Matters, op cit p111
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Copyright © 1997 Council on the Ageing.
All rights reserved.
Revised: 12 March 2003
COTA National Seniors Policy Secretariat [formerly Council
on the Ageing (Australia)
Level 2, 3 Bowen Crescent, Melbourne Vic 3004
Tel (03) 9820 2655 Fax (03) 9820 9886
email cota@cota.org.au
