The Rights of Older People and Age Discrimination in Australia

The Hon. Susan Ryan AO
Age Discrimination Commissioner
Australian Human Rights Commission

Australian Association of Gerontology National Conference

Brisbane Convention and Exhibition Centre
22 November 2012

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I’d like to begin by acknowledging the traditional owners of the land on which we meet and pay my respects to their elders past and present.

It may surprise you to hear me start by saying that in many ways the research that comes from gerontology is at the forefront of age law reform. Gerontologists give us the evidence and information to advocate for age friendly laws and policies. Your work assists us to understand that while most of us develop along a similar trajectory in the early years of life, our ageing at the latter stages of life is very different, and our laws and policies should respect those differences.

Using your research as evidence, those of us in the business of law reform can argue that systems, policies and laws need to accommodate differences in the ageing population – recognising that chronological age is not destiny. It is gerontologists who show us that biological ageing and social ageing are individual to each human being.

Gerontologists have brought attention to the fact that it is perfectly normal for some 80 year olds to be working, driving and active in their community, while others may be restricted in movement and require high levels of care.

Using your studies and research, I can argue against laws and policies that discriminate on the basis of age.

The evidence you produce assists us to assess the case, if any, for age bars in areas like workers compensation, income protection insurance and driver’s licencing requirements. I am always looking for evidence to support arguments as to why policies and laws in these areas need to allow for individual difference, and extend to older people the opportunities to participate fully in work and community life, for as long as they are willing and able.

I will talk about law reform in more detail, a bit later in this presentation - but first I want to look at issues of ageing, age stereotyping and age discrimination, three elements of our contemporary society which interrelate in ways that severely restrict the rights of older people.

Age discrimination is widespread in our community. It mainly affects older people and it permeates many aspects of life. Like other forms of illegal discrimination, it damages individuals, it demeans our society, and it violates human rights. How does it occur?

A lot of age discrimination comes from negative stereotypes of ageing. Our society tolerates a range of negative stereotypes about older people, for example all older people are mentally and physically weak, stubborn, out of date, unable to learn, seriously unhealthy, in all, a burden to society. When a society accepts these images, it is not surprising that older people are treated worse just because of their age, in employment, in financial and other important services, in having their views and choices respected. In other words they are subjected to age discrimination. Not only are they denied fair treatment, but this negative stereotyping actually damages their health.

With a gerontology lens, we see that negative age stereotyping can have negative impacts on biological ageing, psychological ageing, and social ageing.

You may have heard of the work of a US academic, Becca Levy who has researched the ways in which negative stereotypes can adversely affect physical and cognitive health – with specific impacts on memory, cardiac reactivity to stress, and longevity.

In one study of 660 individuals she found that people who expressed a positive self-perception of ageing tended to have a survival advantage of 7.5 years over those who expressed negative self-perception of ageing.

Levy conducted a series of experiments in which older individuals were subliminally exposed to positive and negative age stereotypes. Those exposed to negative stereotypes tended to function worse on a number of memory performance tests and cardiovascular responses to stress.^[1]

Stereotypes and discrimination

Age discrimination and age stereotyping incur economic, social and psychological costs. 

In recognition of these costs, the Australian Government has taken a number of steps, including the provision of funding to my office for a research project on age stereotyping.

As part of this project I am commissioning research into age stereotypes in the media, results of which will provide key inputs into a media roundtable in May 2013. This meeting will be held with the aim of encouraging the media to drop unjustified negative age stereotypes and replace them with realistic images of older people. 

The research findings will also provide the key input into the development of a public communication campaign that will identify ageism and age discrimination hot-spots, and promote positive images of ageing.

In order to effect change we need to replace out-dated editorial and advertising stereotypes with accurate, balanced, diverse and empowering portrayals of older people.

We must change our attitudes to ageing – for ourselves, for those who currently occupy the old age group, and for the middle aged and the young. If we don’t see ourselves as we are – that is, fitter, healthier and living longer than the stereotypes, then we will continue to create personal costs to individuals and financial costs to our economy. In order to change all this we need to recognise the demographic and associated changes that have already taken place.

We are living in amazing times. In terms of the history of the human race, whole populations, not just individuals are living longer, much longer than ever before. This dramatic increase in longevity has not been gradual. Spurred on by modern medicine and hygiene practices, it has been rapid.

In 1909 when the Age Pension was introduced in Australia, 96% of people died before they reached pension age. That was not so long ago. It was for example after both my parents were born. Now not only do most of the population reach 65 - currently, 75% of men and close to 85% of women^[2] - the average life expectancy is 84 for women and nearly 80 for men, and it is increasing every year. ^[3]

According to Professor Ian Hickie from the University of Sydney’s Brain and Mind Research Institute: ‘Today’s physically active 70-year-olds who don’t smoke have scans showing brains that look 10 to 15 years younger than those of their parents’ generation at the same age – more of whom were smokers’.^[4]

Despite the epidemics of physical and mental disease we hear so much about, and the widespread catastrophising about the health problems of old age, the facts are very positive.

Older Australians live in private dwellings - only one in four people 85 years or over live in care accommodation.^[5]

1% of people below 65, less than 2% of people 65-74, 8.4% of people 75-84 and 23% over 85 suffer from dementia. ^[6] Supporting those figures Dr Roderick McKay, Chair of the Faculty of Psychiatry of Old Age at the Royal Australian and New Zealand College of Psychiatrists, stated in a media release 8 November 2012 that 80% of people will not have dementia at 80.^[7]

Most of us, at least up to 80 and many of us for years beyond this point are basically ok and can and do live independently.

What we have to change is not the facts but our thinking – and the thinking of decision-makers, employers and law makers. We need to convince older people themselves of the truth that that they are able to have long healthy and productive lives.

It is this change of thinking, and then of course the changes of policies and practices that will follow that comprise the fundamentals of what I hope to achieve in my term as the Age Discrimination Commissioner.

My starting point as Age Discrimination Commissioner at the Australian human rights Commission is this:

we all have human rights. We have them from the beginning of our lives, and keep them through to the end of our lives. Those rights do not diminish with age. They are protected by the Universal Declaration of Human Rights 1948, and strengthened and expanded by the range of international rights conventions built on the foundation of the Declaration.

What is the age discrimination picture in Australia?

But because of age discrimination, the rights of older people are often violated. Most age discrimination complaints that we receive at the Commission are in the area of employment. During the 2011-2012, we received 196 complaints related to age, and 134 or 68 percent of these related to employment.^[8]

Put together with a range of other indicators from ABS statistics and specific research we can see that age discrimination is most prevalent in employment.

This is why fair access to employment is my priority as Age Discrimination Commissioner.

Age discrimination acts in two ways: first, it undermines older workers currently in jobs by excluding them from training and promotion, and creating a hostile atmosphere that destroys confidence and makes older workers more likely to take up redundancies.

The second major effect is on older unemployed people trying to get back into the workforce. Recruitment processes are stacked against unemployed people from age 45 up. Despite the existence of the Age Discrimination Act 2004, many job advertisements and culling processes show a directly discriminatory preference for young recruits. Even more often code words like “energetic”, “dynamic”, “innovative” are used to shut the door in the face of older workers - people with extensive relevant skills and experience and a proven track record.

The costs of this discrimination are not only born by the individuals who are subjected to it, the costs to the national economy are huge.

I recently commissioned Deloitte Access Economics to measure what we would gain, what the impact would be on the national economy if we could increase the participation rates of the over 55s. ^[9]

The figures are astounding.

With just a 3% increase in participation by this group, we should see an extra $33billion annual boost to the national economy.

With a five % increase in participation, we would see a $48 billion national economy impact. This $48 billion would be in addition to the $55 billion currently anticipated with the current quite slow trend of increasing participation.

So the imperative in terms of our national economy could hardly be stronger.

But let me return to the individuals.

The longer you work, the stronger your personal finances are.

You build up more superannuation and reduce the years you will need to live on it. You are more likely to pay off a mortgage, ensuring that you have a major asset to take you forward to your personal century.

As well as these financial benefits, research shows that those who work for longer are healthier and happier. Hence the multi-pronged disaster of age discrimination: individuals who are forced out of paid work in their 50’s are being forced into permanent poverty, and as well they are deprived of the other social and health benefits of having a job.

Working for longer

While it is clearly important for older people to keep their jobs, recent public policy changes are making it essential. Take the decision to increase the qualifying age for the Age Pension. This is increasing and 2023 will be 67 years.^[10] Currently, around 80 per cent of retired Australians rely on the Age Pension to some degree, so we are looking at a necessary and very large increase of people aged 65 to 67 in the labour market at a time when the evidence shows that over 65’s seeking work come up against a range of barriers – some of them contained in policy and law.

Legal and policy barriers to employment

One of the most significant of these restrictions is the limitation on Australia’s workers compensation schemes. The majority of the states and territories impose an age limit of 65 on the income replacement part of the scheme. At 65, income replacement is cut off or limited.
There are similar age restrictions on income protection insurance and travel insurance.

I am pleased to report some action at government and industry levels to improve these polices, but much remains to be done.
Who is addressing age discrimination in the workforce?

In terms of law reform, two major initiatives have the potential to lead to stronger protections of the rights of older people.

First, the Australian Law Reform Commission Inquiry into Commonwealth legislation that prevents people over 45 from staying in the workforce should establish the case for extensive policy and law reform.

I have been appointed a part-time Commissioner to this Inquiry which is called the Age Barriers Inquiry.

We have been asked to look at: superannuation law; family assistance, child support; social security law; employment law; insurance law; compensation laws; and any other relevant Commonwealth legislation.

The Inquiry has released a discussion paper and submissions are currently being received. The report with recommendations for reform will be presented to the Attorney General in April 2013.

Secondly there is the Attorney-General’s project to consolidate the five anti-discrimination Acts into a single law. This initiative holds great potential for improvement in all aspects of anti-discrimination law and human rights protection including the rights of older people.

The Attorney-General’s Department is developing an exposure draft of the legislation and I expect we will see this soon.

Complementing to some extent this national impetus to reform to better support the rights of older Australians is the international process underway.

Last August I attend the United Nations Open Ended Working Group on protecting the rights of older people.

This forum is open to all member states of the UN and to accredited NGO’s.

I was invited to present on how we are dealing with age discrimination in Australia.

At this stage there is no consensus among member states on the desirability of a new convention for older people. The EU members, the US and some others do not favour a formal binding agreement. Others, the South Americans, South Africa, Ghana, Indonesia and Malaysia among them are strongly in favour.

The Australian government has not yet adopted a formal position, although it does take part in the discussions.

After listening to presentations from over 60 member states I was convinced that a new convention would strengthen the position of civil society and policy makers to achieve reforms in those many countries where older people have no protection of their basic rights. In these places, the basics of food, housing, income, and health care are not available to older people and the consequent suffering is terrible.

My view of Australia as a good international citizen, able to offer leadership in improving the lives of older people, has led me to propose Australia’s support for the convention. I am in the process of advocating this position to government and to our federal parliamentarians across the board. I know this pro convention position is strongly supported by COTA and other sector representatives.

I conclude by expressing the hope that gerontologists, a particularly relevant and influential professional group, will also become strong supporters of this proposed new international law.

Thank you.

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^[1] Levy, B. R., Zonderman, A. B., Slade, M. D., & Ferrucci, L. ‘Memory Shaped by Age Stereotypes over Time’. Journal of Gerontology: Psychological Sciences, 67, 432-436, 2012.
Levy, B. R., Zonderman, A. B., Slade, M. D., & Ferrucci, L., ‘Age Stereotypes Held Earlier in Life Predict Cardiovascular Events in Later Life’. Psychological Science, 20, 296-298, 2009.
Levy, B. R. ‘Stereotype Embodiment: A Psychosocial Approach to Aging’. Current Directions in Psychological Science, 18, 332-336, 2009.
Levy, B. R. & Myers, L.M., ‘Preventive Health Behaviours Influenced by Self-perceptions of Aging’. Preventive Medicine, 39, 625-629, 2004.
Levy, B.R., Slade, M.D., Kunkel, S.R., & Kasl, S.V. ‘Longevity Increased by Positive Self-Perceptions of Aging’. Journal of Personality and Social Psychology, 83, 261-270, 2002.
Levy, B.R., Slade, M.D., & Kasl, S.V. ‘Longitudinal Benefit of Positive Self-Perceptions of Aging on Functioning Health’, Journal of Gerontology: Psychological Sciences, 57, 409-417, 2002.
^[2] Australian Institute of Health and Welfare, Australia’s Health 2012, At http://www.aihw.gov.au/deaths-faq/ (viewed 6 September 2012).
^[3] ABS, Life Expectancy Trends – Australia, 4102.0 – Australian Social trends, March 2011. At: http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4102.0Main+Features10Mar+2011 (viewed 6 September 2012).
^[4] Hickie I., Is retirement bad for our brain? Sydney Morning Herald, January 31, 2012. At
http://www.smh.com.au/lifestyle/diet-and-fitness/blogs/chew-on-this/is-retirement-bad-for-our-brain-20120130-1qovc.html (viewed 6 September 2012).
^[5] Australian Institute of Health and Welfare, 2011. ‘Ageing and Aged care’, Australia’s Welfare, Australia’s Welfare series no. 10, Cat. No. AUS 142. P. 168 Canberra, AIHW. At: http://www.aihw.gov.au/publication-detail/?id=10737420537 (viewed 6 September 2012)
^[6] Australian Institute of Health and Welfare, Australia’s Health 2012, Australia’s health series no.13, p 317. At http://www.aihw.gov.au/publication-detail/?id=10737422172 (viewed 6 September 2012).
^[7] Royal Australian and New Zealand College of Psychiatrists, ‘For older people dementia is not the norm: RANZCP’, (Media Release, 8 November 2012). At http://www.ranzcp.org/News/For-older-people-dementia-is-not-the-norm-RANZCP.aspx (viewed 9 November 2012).
^[8]Australian Human Rights Commission, Annual Report 2011 – 2012, 2012.
^[9] Increasing participation among older workers: The grey army advances
http://www.hreoc.gov.au/age/publications/mature_age/index.html (viewed 6 September 2012).
^[10] Australian Bureau of Statistics, Life Expectancy Trends, 4102.0 - Australian Social Trends, March 2011. At http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4102.0Main+Features10Mar+2011 (viewed 21 September 2011).