Age Discrimination Legislation
Legal
Response to Information Paper
Containing Proposals for Commonwealth Age Discrimination Legislation,
December 2002
Human Rights and Equal Opportunity
Commission, 12 February 2003
1. Introduction
2. Discrimination
3. Prohibitions on age discrimination
4. Age discrimination in work
5. Age discrimination in relation to goods, services and
facilities
6. Age discrimination in relation to Commonwealth laws and
programs
7. Age discrimination in other areas
8. Other discrimination issues
9. General exemptions
10. Offences
11. Human Rights and Equal Opportunity Commission functions
12. Issues relating to States and Territories
1. INTRODUCTION
The Human Rights
and Equal Opportunity Commission (Commission) welcomes the Federal Government's
proposal to make discrimination based on age unlawful.
The concept of age
discrimination is not new. All State and Territories have, for some years,
made discrimination based on age unlawful through anti-discrimination
and equal opportunity laws. [1] Since 1990 the Commission
has had the power to inquire into and attempt to conciliate complaints
alleging age discrimination in employment and occupation. [2]
However, unlike complaints made under the Racial Discrimination Act
1975 (Cth) (RDA), Sex Discrimination Act 1984 (Cth) (SDA) and
Disability Discrimination Act 1992 (Cth) (DDA), complaints of age
discrimination do not give rise to any enforceable legal right or remedy.
If the Commission finds that an act or practice constitutes age discrimination,
action taken by the Commission is limited to preparing a report with recommendations
which is provided to the Attorney-General for tabling in Federal parliament.
[3] Since 1996, a number of reports under the Human
Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act)
concerning discrimination based on age in employment and occupation have
been tabled. [4]
In May 2000 the Commission
produced its report Age Matters: a report on age discrimination ("Age
Matters"). This report recommended enactment of comprehensive
Federal age discrimination legislation and the review and amendment of
a number of Commonwealth laws that contained age discriminatory provisions.
[5] In reports to Parliament on age discrimination complaints
in 1996 and 1997, the then Human Rights Commissioner also recommended
the enactment of Federal age discrimination legislation. [6]
The Commission appreciates
the government facilitating the meetings of the Core Consultative Group
(CCG) and working parties. These meetings enabled the Commission to better
understand how age as a criterion permeates most areas of public life
and the far-reaching effect age discrimination has, both positive and
negative, on all sectors of the community. Unlike our race or ethnic background,
age is an ever-changing personal characteristic and what we may call for
from our legislators in our youth will differ vastly from our concerns
in middle and later age. The balance between these often competing interests
is a complex matter and one that our legislators must face when considering
all laws that propose to contain age as a criterion. The Commission is
mindful of this complexity in making its response to this proposal.
The Commission considers
that the objectives of anti-discrimination legislation must be as beneficial
and broad-reaching as possible. The Commission favours consistency of
laws and supports a model for age discrimination legislation which is
largely based on current Federal anti-discrimination laws. The Commission
considers that the proposed legislation should not be too prescriptive
and should be flexible enough to deal with public concerns that may emerge
over time.
Generally, the Commission
supports the proposals outlined in the Information Paper (IP). However,
the Commission is of the view that specific comment is required in relation
to some areas. These comments are summarised below and expanded on in
the body of this document.
- Direct and
indirect discrimination
The Commission considers that the definition of indirect age discrimination
utilised in the proposed age discrimination legislation should take
the form of the indirect discrimination provisions contained in the
SDA. The Commission considers that this definition is both simpler to
understand and apply and is broader in its coverage than other definitions
in Federal anti-discrimination law. - Relatives and
associates
As raised in discussions of the CCG, the Commission considers that discrimination
on the ground of age should be extended to cover discrimination on the
basis of the age of a person's relative or associate. The Commission
notes that such provisions are included in the other Federal anti-discrimination
law and in State and Territory laws. For example, under the DDA it is
unlawful to discriminate against an associate of a person with a disability
in certain areas of public life, for example employment, education,
access to premises and the provision of goods, services and facilities. - Intersectionality
While the Commission appreciates the Government's concern that the proposed
age discrimination legislation should not create an alternative avenue
for complaints of disability discrimination that are properly covered
by the DDA, the Commission is not convinced that the proposed legislation
needs to include specific provisions to deal with this. The Commission
notes that such provisions are not included in any other Federal, State
or Territory legislation. The Commission is of the view that any potential
overlap between grounds of discrimination covered by different Federal
anti-discrimination laws is appropriately dealt with through the complaints
process. The Commission submits that it is essential that the proposed
legislation does not prevent people from making a complaint under the
DDA and age discrimination legislation where they believe that their
age and disability are two distinct reasons for the alleged less favourable
treatment. - Prohibitions
of age discrimination - areas of public life
The Commission considers that the areas in which age discrimination
is made unlawful should be consistent with those in other Federal anti-discrimination
law and therefore recommends that, subject to constitutional considerations,
the areas of 'clubs', 'incorporated associations' and 'sport' also be
included. - Definition
of 'employment'
In its complaint handling role, the Commission has become aware of new
and emerging employment relationships which appear to fall outside the
definitions of 'employment', 'contract worker' and 'employee' contained
in Federal anti-discrimination law. The Commission considers that in
defining 'employment' for the purposes of age discrimination legislation,
attention should be directed to ensuring that the definition is sufficiently
broad to ensure that these emerging forms of employment relationships
can be appropriately considered. - Unpaid work
The utilisation of unpaid/volunteer work in public life is now well
established and recognised throughout the community. The Commission
considers that provision should be made in the proposed age discrimination
legislation to cover unpaid/volunteer work situations where this is
undertaken in the public arena or where the unpaid/volunteer work may
give rise to an opportunity for future employment. Currently under the
HREOC Act, an unpaid worker can make a complaint to the Commission if
they believe that they have been discriminated against on the basis
of their age when undertaking work in order to pursue a particular occupation
or to gain employment. The Commission considers that the proposed age
legislation should not erode the breadth of the existing coverage in
this respect. - Youth wages,
job training and younger workers
The Commission does not support the inclusion of specific permanent
exemptions in age discrimination legislation for youth wages, job training
programs or Government work experience or community work programs. The
Commission considers that these issues can be dealt with through an
appropriate special measures provision or an exemption for acts done
in direct compliance with an award, industrial agreement or Commonwealth
legislation.The Commission
notes the views expressed by young people in discussions of the CCG
and working parties that youth wages should be tied to training and
that the imposition of youth wages, although sometimes beneficial,
did not have corresponding reductions in accommodation, travel and
other living costs. The Commission considers that further consultation
and research is needed on this issue before Youth Wages are specifically
exempted from age discrimination legislation. - Exemption for
acts done in accordance with industrial awards and workplace agreements
The Commission is of the view that the proposed exemption should be
limited to acts done in compliance with the provisions of industrial
awards and workplace agreements. This is consistent with the approach
taken in other Federal anti-discrimination law. The Commission considers
that an exemption which covers actions which are not directly pursuant
to awards but are permitted by them would be far too broad and would
undermine the effective operation of the age legislation. - Exemption for
credit
The Commission does not support an exemption for age discrimination
in the provision of credit or financial services. The Commission is
not persuaded that age is central to assessments of the ability to service
various forms as debt, as opposed to criteria such as a person's income,
savings, investments, credit history etc. The Commission also notes
that none of the other Federal anti-discrimination legislation includes
an exemption in relation to the provision of credit or financial services. - Commonwealth
laws and programs
The Commission considers that some legislation may be more appropriately
exempt from the proposed law on a permanent basis where those areas
of law are sufficiently reviewed and scrutinized by the Parliament on
a regular basis. The Commission considers that all other Commonwealth
laws (apart from those relating to the Australian Defence Force) be
given a two year sunset period to become compliant with the proposed
age discrimination law or else seek permanent exemption from the Parliament.
A similar approach was taken when the DDA was enacted. - Australian
Defence Force
The Commission does not consider that defence force legislation and
subsidiary instruments should be exempt from the proposed law, except
so far as it relates to the minimum age for enlistment and cadet schemes.
As an employer, the Commission considers that the inherent requirements
provisions should be the appropriate exception for any of the current
age based criterion used by the defence forces including those for entry
for particular positions, transfer, promotion and retirement. - Harassment
The Commission submits that the proposed age legislation should prohibit
harassment on the basis of age. This is consistent with the approach
taken in other Commonwealth anti-discrimination law. - Cause, instruct,
induce etc an unlawful act
The Commission submits that the proposed age legislation should take
the same approach as that taken under the DDA and the HREOC Act to acts
that can be described as "incitement", that is, to make such
conduct an offence as well as unlawful.
- Positive age
discrimination
The Commission supports the inclusion of a provision in the age discrimination
legislation that provides for 'positive' age discrimination in order
to reduce disadvantage or to meet the special needs of a particular
age group. This would be largely consistent with the special measures
provisions that currently exist in the RDA, SDA and DDA.However, the
Commission is of the view that the Government should be cautious that
any extension of the current understanding of a special measures provision
does not undermine the objective of the proposed legislation to eliminate
age discrimination. - Exemptions
for acts done to comply with State laws
The Commission notes that notwithstanding that age discrimination is
made unlawful through all States and Territories, nearly all states
and territories exempt any act that is done in compliance with State
or Territory legislation. [7] The Commission considers
that the Commonwealth should have the ability to prescribe relevant
State laws, should it consider it appropriate to do so, given the reach
State and Territory laws have on the community and public life. - Exemptions
for religious purposes
The Commission submits that if an exemption in relation to religious
bodies was ultimately considered necessary, it should only apply where
it is necessary to avoid injury to the religious susceptibilities of
adherents to the religion. In the Commission's view, any such exemption
should not be available in relation to the provision of public services
by religious bodies such as employment, welfare and health services. - Exemptions
for voluntary bodies
The Commission opposes the inclusion of an exemption in relation to
voluntary bodies. Such an exemption is not included in the RDA or the
DDA, the latter being the most recently drafted piece of federal anti
discrimination legislation. In addition, such an exemption is included
in only two pieces of State anti-discrimination legislation. [8]
The Commission has found that the inclusion of such an exemption in
the SDA limits the ability of people to make complaints of alleged acts
unlawful discrimination in an important area of public life. - Victimisation
The Commission supports the proposal for victimisation to be made an
offence under the age discrimination legislation. However, it submits
that conduct amounting to victimisation under the proposed age discrimination
legislation should also be made unlawful discrimination under the HREOC
Act. [9] Not only would this ensure consistency with
other federal anti-discrimination law, but would also act as an additional
deterrent to potential acts of victimisation. - Advertising
The Commission supports the proposal to make it an offence under the
proposed age discrimination legislation to advertise in such a way that
indicates an intention to unlawfully discriminate on the basis of age.
This would be consistent with other Federal anti-discrimination legislation.
[10] However, the Commission also notes that such
advertising amounts to unlawful conduct under the RDA [11]
and can also lead to a complaint to the Commission under s 46P of the
HREOC Act if an intention to unlawfully discriminate on the basis of
disability is shown. [12] The Commission suggests
that the latter approach should also be taken in respect of age. This
would ensure consistency with the most recent piece of federal anti-discrimination
legislation in relation to this issue. It may be appropriate for guidelines
to be developed in order to provide guidance in this area.
The Commission considers
that it is the appropriate organisation to administer the proposed legislation
and that it be given the necessary functions [13] to
conduct inquiries into complaints and to endeavour to settle them through
conciliation; conduct public inquiries and education programmes; issue
guidelines; examine enactments; intervene in court proceedings that involve
age discrimination issues and to act in an amicus curiae role [14]
in matters that may proceed to determination in the Courts.
2. DISCRIMINATION
2.1 Direct and
indirect discrimination
The Commission welcomes
the Government's proposal to define age discrimination in a way that includes
both direct and indirect discrimination. Direct and indirect discrimination
are key concepts and broadly accepted legal principles in anti-discrimination
law. This approach to defining discrimination is consistent with the approach
taken in Federal, State and Territory anti-discrimination law. Defining
age discrimination in this way will provide individuals and organisations
with clarity regarding their rights and responsibilities under the legislation.
It is noted that
the IP does not propose a specific definition of indirect age discrimination
to be included in the proposed age discrimination legislation. The Commission
considers this definition should take the form of the indirect discrimination
provisions contained in the SDA.
The definition of
indirect discrimination contained in the SDA is both simpler to understand
and apply and broader in its coverage than other definitions in Federal
law. For example, s 5 of the SDA defines indirect sex discrimination as
occurring when a person imposes, or proposes to impose, a condition, requirement
or practice that has or is likely to have the effect of disadvantaging
people of the same sex as the aggrieved person. Section 7B of the SDA
provides that a respondent does not discriminate against a person if the
condition, requirement or practice is reasonable in the circumstances.
It also lists the matters to be taken into account when determining whether
a condition, requirement or practice is reasonable in the circumstances.
The Commission is of the view that the inclusion of a similar provision
in the proposed age discrimination legislation will not only provide important
guidance for parties to a complaint, but also assist the Commission in
the administration of the legislation.
Additionally, the
Commission recommends that in relation to indirect age discrimination,
the legislation should specify that the burden of proof in establishing
that a condition, requirement or practice is reasonable in the circumstances
lies with the person who allegedly imposed the condition, requirement
or practice. This is consistent with s 7C of the SDA. Placing the onus
of proof on the respondent is logical as information concerning the reasonableness
of the particular condition, requirement or practice would generally be
in the possession of the respondent. The Commission notes that while in
relation to indirect discrimination under the DDA and the RDA, the complainant
has the onus to demonstrate that a condition or requirement is not reasonable,
in practice, when investigating such complaints, the Commission generally
seeks submissions from respondents on the reasons for, and the reasonableness
of, the condition, requirement or practice.
2.2 Other definitional
issues
2.2.1 Characteristics
The Commission supports
the proposal to define the ground of age discrimination to include a characteristic
that is 'generally imputed to' and a characteristic that 'generally appertains
to' a person of that age.
2.2.2 Age or age
group
The Commission agrees
with the proposal that the proposed legislation include 'age group' within
the ground of age.
2.2.3 Relatives
and associates
The Commission considers
that discrimination on the ground of age should be extended to cover discrimination
on the basis of the age of a person's relative or associate.
Under the DDA it
is unlawful to discriminate against an associate of a person with a disability
in certain areas of public life, for example employment, education, access
to premises and the provision of goods, services and facilities. [15]
The RDA also contains provisions that make it unlawful for a person to
discriminate against another person in particular areas of public life
because of the race, colour or national or ethnic origin of a relative
or associate. [16] Accordingly, the prohibition of
discrimination against relatives and associates has been an aspect of
Federal anti-discrimination law since 1975 and such provisions were included
in the most recent piece of Federal anti-discrimination law. In the Commission's
experience, the inclusion of protections in the legislation for associates
and relatives has been largely uncontroversial and has not resulted in
a large number of complaints being made on this basis.
2.3 The intersection
of age discrimination and disability discrimination
In relation to this
issue, the Commission notes that people's experiences of discrimination
are often multi-dimensional and quite complex. For example, a person might
complain to the Commission because they believe they were selected for
redundancy on the basis of both their age and their disability or a person
may complain that their race and sex were reasons why they were refused
employment.
The Commission is
of the view that it is important that the various pieces of Federal anti-discrimination
legislation can operate together in a way which enables complaints to
be considered as a whole and any intersectionalities between the various
grounds of discrimination to be fully and properly considered.
While the Commission
appreciates the Government's concern that the proposed age discrimination
legislation should not create an alternative avenue for people whose complaints
may not be successful under the DDA due to the existence of Standards
[17] or the defence of unjustifiable hardship, the
Commission is not convinced that the proposed legislation needs to include
specific provisions to deal with this. The Commission notes that such
provisions are not included in any other Federal, State or Territory legislation.
The Commission is
of the opinion that any potential overlap between grounds of discrimination
covered by different Federal anti-discrimination law can be dealt with
through the Commission's complaint assessment and election of jurisdiction
processes and through the termination grounds which are found in s 46PH
of the HREOC Act. [18]
The Commission considers
that, if a person made a complaint alleging age discrimination, but the
complaint is really only about their disability, it is likely to be difficult
for them to successfully make out a complaint of direct age discrimination.
Difficulties would arise in the complainant being able to establish a
sufficient connection between his or her age and the alleged less favourable
treatment. Additionally, problems would arise in relation to making out
a complaint of indirect age discrimination. Firstly, a complainant would
need to establish that the requirement or condition disadvantaged people
of the complainant's age group and, secondly, issues of reasonableness
would also need to be considered. The factors considered in assessing
the reasonableness of the requirement or condition would be similar to
those examined in assessing issues of unjustifiable hardship under the
DDA and could include considerations of Standards under the DDA.
If the Government
considers it necessary to include legislative provisions dealing with
any overlap between age and disability discrimination, the Commission
submits that it is essential that these provisions do not prevent people
from making a complaint under the DDA and age discrimination legislation
where they believe that their age and disability are two distinct reasons
for the alleged less favourable treatment.
3. PROHIBITIONS ON AGE DISCRIMINATION
Currently the HREOC
Act covers discrimination on the ground of age only in the area of employment
or occupation and does not make age discrimination unlawful. The Commission
welcomes the fact that the proposed age legislation will make discrimination
in employment unlawful. The Commission also welcomes the extension of
the prohibition of age discrimination to a broad range of areas of public
life. However, the Commission considers that the areas of unlawful age
discrimination should be consistent with those in other Federal anti-discrimination
law and therefore recommends that, subject to constitutional considerations,
the areas of 'clubs', 'incorporated associated' and 'sport' also be included.
These areas of public life are of great importance to many Australians.
4. AGE DISCRIMINATION IN WORK
4.1 Prohibition
of age discrimination
The Commission agrees
that the prohibition on age discrimination in the area of work should
cover applicants and employees, commission agents, contract workers, partnerships,
industrial organisations, qualifying bodies and employment agencies in
a similar manner to coverage in existing Federal, State and Territory
legislation.
4.2 Definition
of 'employment'
The Commission is
not opposed to the proposal to define employment consistently with other
Federal anti-discrimination law.
However, through
its handling of complaints under the SDA, the Commission has become aware
of an emerging number of people who, although in 'employment like' relationships,
appear to fall outside of the definitions of employment, contract worker
and employee contained in the SDA. Although a person may work at or out
of the workplace of a principal on a regular and systematic basis, he
or she will not come within the definition of 'contract worker' as they
have a contract directly with the principal/organisation. [19]
Also, due to the nature of their relationship, they may not clearly come
within the definition of an 'employee'.
Accordingly, the
Commission considers that in defining employment for the purposes of the
proposed age discrimination legislation, attention should be directed
to new and emerging forms of work and employment relationships, and steps
should be taken to ensure that people who are in 'employment-like' relationships
are appropriately protected by the legislation.
4.3 Unpaid work
As noted previously,
the HREOC Act already covers discrimination on the basis of age in the
area of employment or occupation. This definition of discrimination is
based on that contained in the Discrimination (Employment and Occupation)
Convention 1958 (ILO111). 'Discrimination' is defined in s 3 of the HREOC
Act as:
"(a) any distinction,
exclusion or preference .that has the effect of nullifying
or impairing equality of opportunity or treatment in employment or occupation;
and(b) any other distinction,
exclusion or preference that:(i) has the effect
of nullifying or impairing equality of opportunity or treatment in
employment or occupation; and(ii) has been
declared by the regulations to constitute discrimination for the purposes
of this Act; "
Therefore, under
the HREOC Act, a person can complain to the Commission about any treatment
that has nullified or impaired their equality of opportunity in employment
or in pursuing an occupation. This provision covers unpaid workers if
they are undertaking work in order to pursue a particular occupation or
to gain employment.
The Commission also
notes that unpaid work is increasing in incidence and being used more
broadly in order to obtain the experience needed to enter the workforce
or retrain for another profession or occupation. Accordingly, discrimination
in relation to selection for unpaid work could have significant consequences
on a person's ability to pursue a particular occupation or form of employment.
In drafting legislation
prohibiting age discrimination, the Commission is of the view that the
breadth of the HREOC Act definition of discrimination should not be eroded
and that the proposed legislation should also provide protection for people
performing unpaid work where this work is performed in connection with
an area of public life. The Commission does not consider it appropriate
to extend the coverage of the legislation to unpaid work that is performed
within the domestic sphere.
Volunteers make a
significant contribution to the community in particular to the charitable
and non-profit sector and the Commission submits that volunteers should
also be covered by age discrimination legislation.
The Commission notes
that protection for unpaid/volunteer work may best be achieved through
the provision of a separate area of discrimination rather than by extending
the definition of employment.
4.4 Contract workers
The Commission's
position on this point is addressed at point 4.2 above.
4.5 Youth wages,
job training and younger workers
The Commission does
not support the inclusion of specific permanent exemptions in age discrimination
legislation for youth wages, job training programs or participation in
Government work experience or community work programs such as the 'Work
for the Dole' scheme.
The Commission considers
that these issues can be dealt with through an appropriate special measures
provision or exemptions in relation to acts done in direct compliance
with an award, industrial agreement or Commonwealth legislation.
The ILO 111, which
is scheduled to the HREOC Act, provides for special measures in the area
of employment. It states:
1. Special measures
of protection or assistance provided for in other Conventions or Recommendations
adopted by the International Labour Conference shall not be deemed to
be discrimination.2. Any member may,
after consultation with representative employers' and workers' organisations,
where such exist, determine that other special measures designed to
meet the particular requirements of persons who, for reasons such as
sex, age, disablement, family responsibilities or social or cultural
status, are recognised to require special protection or assistance,
shall not be deemed to be discriminatory.
Special measure provisions
are preferred because they are more flexible and targeted than specific
fixed exemptions. They ensure that only those programs and policies that
are designed and targeted to address disadvantage by a particular group
are exempt from the operation of the legislation. Once the disadvantage
that the program or policy has been set up to address has been remedied,
then the program or policy would no longer be a special measure and exempt
from the Act. In Age Matters, the Commission recommended that a
number of special measures aimed at mature age-job seekers and older workers
either be continued or implemented.
It is also noted
that the proposed legislation provides the Commission with the power to
grant exemptions. Organisations and departments delivering a program which
they consider to be a special measure could apply to the Commission to
have it exempt from the operation of age discrimination legislation.
The Commission notes
that junior rates of pay are usually contained in industrial awards and
agreements and any exemption in relation to acts done in direct compliance
with awards or industrial agreements would cover this issue.
In Age Matters,
the Commission also examined in some detail the issue of youth wages.
It found that:
"Determining
the acceptability or otherwise of junior rates has been difficult because
of the lack of unequivocal evidence as to the effect their abolition
would have on the youth labour market overall. If there is no significant
detrimental effect, the differences cannot be justified. The evidence,
however, is inconclusive." [20]
The Commission recommended
that the Federal Government should:
(a) encourage and
work with industrial parties to develop and trial a full range of employment,
training and wage options for young people;(b) amend the Workplace
Relations Act 1996 to require the Australian Industrial Relations
Commission to undertake a further review of junior rates and feasible
non-discriminatory alternatives within a reasonable period; and(c) require the
Australian Industrial Relations Commission in its considerations of
junior rates on a case by case basis to
- consult widely
with young people and their representative organisations- base its assessment
on whether junior rates are proportional to the objective of increasing
young people's access to full-time employment and are the most effective
and least discriminatory means to this end. [21]
The Commission considers
that further consultation and research is needed on the issue of youth
wages before youth wages are specifically exempted from age discrimination
legislation.
The Commission supports
the proposal of establishing an information/advocacy service for younger
workers.
4.6 Exemption
for inherent requirements of the job
The Commission considers
that it is appropriate to include a defence to unlawful age discrimination
in the area of employment where a person, because of their age, is not
able to carry out the inherent requirements of the particular employment
or job. The inherent requirements defence is already contained within
the definition of age discrimination in the HREOC Act. [22]
The concept of inherent requirements is also a component of the defence
available to employers under the DDA. [23]
While the Commission
acknowledges that there may be particular jobs where age is an inherent
requirement, it is recommended that specification in the legislation of
situations where age is an inherent requirement should be kept to a minimum
and limited to situations where it is clear that a person's age is critical
to their ability to successfully perform the essential elements of the
job. The Commission's preference is for these issues to be decided on
a case by case basis.
4.7 Acts done
in accordance with industrial awards and workplace agreements
The Commission supports
the proposal that this exemption be limited to acts done in compliance
with the provisions of industrial awards and workplace agreements. This
is consistent with the approach taken in other Commonwealth anti-discrimination
laws. For example, s 40 of the SDA exempts anything done by a person in
direct compliance with an order or award of a court or tribunal having
power to fix minimum wages and other terms and conditions of employment
or a certified agreement (within the meaning of the Workplace Relations
Act 1996 (Cth)). In those cases where actions are in direct compliance
with an award or agreement, the Commission considers that it is appropriate
that the legislation provide it with the power to refer discriminatory
awards and agreements to the Australian Industrial Relations Commission.
The Commission considers
that an exemption which covers actions which are not directly pursuant
to awards but are permitted by them would be far too broad. An exemption
of this nature would undermine the effective operation of age discrimination
legislation and would remove from the anti-discrimination jurisdiction
discretionary actions by employers that while permitted by an award or
industrial agreement, may treat people unfairly on the basis of their
age.
4.8 Vicarious
liability
The Commission supports
the inclusion of a vicarious liability provision consistent with those
contained in the SDA, RDA and DDA. It is a cornerstone of anti-discrimination
law that employers and principals are responsible for the actions of their
employees or agents unless they can show that they took all reasonable
steps to prevent the discrimination from occurring. This legal principle
acknowledges the power that employers have in order to ensure behaviour
that accords with society's expectations of fair and equitable treatment
for all Australians.
4.9 Domestic employment
The Commission considers
that it is appropriate to take an approach consistent with other anti-discrimination
law and exempt the performance of domestic duties on the premises on which
the employer resides.
5. AGE DISCRIMINATION IN RELATION
TO GOODS, SERVICES AND FACILITIES
5.1 Prohibition
of age discrimination
As stated under heading
3 above, the Commission welcomes the extension of the prohibition of age
discrimination to a broad range of areas of public life, including the
provision of goods, services and facilities.
In light of the beneficial
nature of anti-discrimination legislation, the Commission is of the view
that exceptions and exemptions from the operation of the age discrimination
legislation should be kept to a minimum. However, the Commission accepts
that certain exceptions and/or exemptions may be necessary in relation
to certain goods and services, such as superannuation and insurance. These
issues are discussed below.
5.2 Exemption
for superannuation
The Commission accepts
that because the overall purpose of superannuation is to promote better
incomes in retirement and related purposes, age-related criteria forms
a fundamental basis of superannuation policy and law. It is clear that
any amendment of superannuation laws to remove age barriers is complex
and potentially affects a range of other areas including social security,
tax and other issues.
On the basis that
age-related criteria are central to the Federal Government's policies
concerning superannuation, and that there is ongoing review and adaptation
of the superannuation system as outlined in 5.2.1 of the IP, the Commission
does not oppose the proposal that the age discrimination legislation should
provide an exemption in relation to superannuation schemes operating under
Commonwealth superannuation and related legislation. The IP notes that
the way in which this outcome will be achieved will be a drafting issue
and notes two alternatives. The first alternative, that is, to list all
relevant legislation to be exempted, would be a true exemption and would
provide clarity in the application of the exemption to any alleged act
of discrimination. The Commission notes, however, the comment that there
are many and often changing pieces of legislation that would need to be
listed in such an exemption. The Commission therefore supports the alternative
approach suggested, that is, to exempt discriminatory actions that are
needed to comply with, or obtain a benefit of, or avoid a penalty under,
any other Act of the Commonwealth dealing with superannuation.
It is relevant to
note that the Commission receives a number of enquiries concerning superannuation
issues and the application of anti-discrimination law. If superannuation
is ultimately exempted from the operation of the proposed age discrimination
legislation, then any educational campaign should pay particular regard
to this issue.
5.2.4 'Actuarial
or statistical data', 'other data' and 'any other relevant factors'
The IP also suggests
an exemption in relation to data issued in determining life insurance
policies and pension payments linked to superannuation. The Commission
supports the proposal at 5.2.4.1 that any such exemption should reflect
the wording of the equivalent provision in s 46 of the DDA. The Commission
notes again, however, that such a provision is, in the Commission's view,
properly termed an exception because, as a matter of practice, if a complaint
was lodged alleging unlawful discrimination in such a situation, the Commission
would normally require the respondent to provide the actuarial or statistical
data upon which it seeks to rely, and would then make an assessment of
whether it was reasonable to rely on that data. Such a provision, therefore,
would not automatically exempt such actions from the coverage of the age
discrimination legislation.
In light of this
matter of practice, the Commission supports the view expressed in 5.2.4.2
that it is not necessary to include in the age discrimination legislation
a provision similar to s 49ZYS(2) of the Anti Discrimination Act (NSW)
1977 (which provides that the exemption for discrimination based on
'other data' or 'any other relevant factors' is available only if the
sources on which the data is based and those relevant factors are disclosed
to the Anti-Discrimination Tribunal).
5.2.6 Superannuation
- issues for Indigenous people and people with disabilities
The Commission shares
the concerns raised by the Aboriginal and Torres Strait Islander Commission
concerning the implications for superannuation (and access to health services
- see 5.6.3 of the IP) as a result of the poorer health status and shorter
life expectancy of Indigenous people as compared with other Australians.
The Commission notes that the solutions to these issues are complex and
largely fall outside the scope of the proposed age discrimination legislation,
but nevertheless urges the appropriate government departments to liaise
in order to discuss the best way to deal with these issues. This may include,
for example, introducing changes to superannuation legislation to enable
Indigenous people to access their superannuation benefits at an earlier
age without penalty.
It is also relevant
to note that any measures that may taken in order to provide special access
for Indigenous people to superannuation benefits (or health services)
may constitute a special measure pursuant to s 8(1) of the RDA, or may
warrant the application of the proposed positive discrimination provision
in the age discrimination legislation (see 9.1 of the IP). In this regard,
the Government may wish to consider including a specific reference to
this issue in either the explanatory memorandum to the proposed age discrimination
legislation or as a provision in the legislation itself. Such a reference
could note that Aboriginal and Torres Strait Islanders currently experience
significantly poorer health status and shorter life expectancy rates than
other Australians; that this may have implications for the age at which
they require access to superannuation, health services and other services;
and that these may be relevant factors in determining whether a particular
measure falls within the positive discrimination exemption in the proposed
age discrimination legislation.
The Commission also
notes, as stated in the IP, that similar issues may also arise in relation
to people with disabilities.
5.3 Exemption
for insurance
The Commission supports
the proposal that any exception relating to insurance should reflect the
wording of the equivalent provision in s 46 of the DDA. The Commission
also notes that any such exception will include health insurance (see
5.6.2 of the IP).
5.4 Exemption
for credit
The Commission does
not support an exemption for age discrimination in the provision of credit
or financial services. The Commission is not persuaded that age is central
to assessments of the ability to service various forms as debt, as opposed
to criteria such as a person's income, savings, investments, credit history
etc. In response to concerns that even factors such as requiring a certain
credit history may lead to an indirect discrimination complaint (for example,
on the basis that such a requirement could disadvantage people of a certain
age who have not had the opportunity to develop a credit history), the
defence of reasonableness is available to a respondent.
The Commission also
notes that none of the other Federal anti-discrimination legislation includes
an exemption in relation to the provision of credit or financial services.
However, in the event
that the proposed legislation does include an exception in relation to
the provision of credit, the Commission supports the proposal that, as
proposed in the IP, it reflect the wording of the equivalent provision
in s 46 of the DDA.
5.5 Prohibition
in relation to access to health and medical goods and services
The Commission notes
that everyone, regardless of age, has the right to enjoy the highest attainable
standard of physical and mental health, [24] and supports
the proposal that age discrimination in relation to health and medical
goods and services should be covered under the general prohibitions of
discrimination in the proposed age discrimination legislation relating
to 'goods, services and facilities' and 'Commonwealth laws and programs'.
5.6 Exemptions
in relation to access to health and medical goods and services
5.6.1 Situations
in which age is an appropriate criterion
The Commission notes
that health services are not exempt from State and Territory anti-discrimination
legislation relating to age.
However, recognising
that age-based criteria may be legitimately used in the delivery of certain
health services, the Commission does not oppose the two exceptions outlined
at 5.6.1 dealing with the delivery of group based health programs and
individual clinical decisions. It notes however that public health issues,
as reflected in s 48 of the DDA, may also need to be considered.
5.6.2 Health insurance
issues including Lifetime Health Cover and Community Rating
Given that the Community
Rating and Lifetime Health Cover are integral to the current national
health insurance scheme, the Commission does not oppose the proposal that
these issues should not be affected by the proposed age discrimination
legislation.
5.6.3 Issues affecting
Indigenous people and people with disabilities
See comments made
at 5.2.6 above.
5.7 Young people
and goods and services
The Commission notes
that the Attorney-General's Department will provide appropriate referrals
to responsible government agencies and departments concerning issues relating
to young people that fall outside the immediate scope of the proposed
age discrimination legislation. The Commission urges relevant agencies
to give these issues serious and urgent attention particularly in relation
to those matters that are impacted on by the continued imposition of youth
wages (see Introduction and 4.5 above).
The Commission also
notes that a proposal was raised in the CCG Working Group on Children
and Youth concerning participation in voting for youth under the age of
18 years. This would reflect the fact that some people who are younger
than 18 years old have an interest in voting and a good knowledge of social
and political issues. The working group raised the idea of optional voting,
rather than compulsory voting, for people below 18 years of age, or optional
registration with compulsory voting for those who choose to register,
and that consideration could usefully be given to lower age limits of
either 14 or 16 years. The Commission strongly encourages the Government
to consider this proposal further as it would provide the opportunity
for younger people to participate in fundamental democratic processes
and decision making which affects them.
6. AGE DISCRIMINATION IN RELATION
TO COMMONWEALTH LAWS AND PROGRAMS
6.1 Prohibition
of age discrimination
The Commission supports
the extension of the prohibition of age discrimination to acts done under
Commonwealth laws or in the administration of Commonwealth programs and
suggests that the prohibition reflect the wording in s 29 of the DDA and
s 26 of the SDA.
As outlined in the
Introduction, the Commission's view is that it opposes a broad form of
exemption that exempts all Commonwealth laws from the operation of the
proposed age discrimination legislation. However, it accepts that specific
exemptions may be appropriate for certain Commonwealth legislation that
implements major social policy programs and where that legislation is
subject to scrutiny and review by the Federal Parliament on a regular
basis. In the Commission's view, such exemptions should apply only to
those acts done in order to comply with the relevant legislation. To that
extent, the Commission does not oppose the proposal to exempt from the
operation of the legislation those pieces of legislation outlined in 6.4
(migration), 6.5 (citizenship and multicultural affairs), and 6.6 (social
security legislation and family and community services and related programs).
The Commission notes
that the proposal under 6.4 relating to the Migration Act 1958
(Cth) ("Migration Act") and the Migration Regulations
1994 (Cth) also seeks to exempt "actions under these laws".
To the extent that that proposal seeks to exempt not only acts done in
direct compliance with a law but also discretionary acts not mandated
by law, then the Commission expressly disagrees with that aspect of the
proposal. Inclusion of discretionary acts in the exemption would be inconsistent
with the general thrust of the proposals made in the IP in relation to
Commonwealth laws and programs as it would have the potential to remove
all action taken under the Migration Act and its regulations, that
is, both those acts done in order to comply with a law and those discretionary
acts done to administer the law. In addition, as outlined under 6.3 of
the IP, discretionary acts could be permitted if they met the tests set
out in other exceptions, such as the proposed exception for positive discrimination.
As noted in the Introduction,
the Commission disagrees with the proposal under 6.7 that age based provisions
in defence legislation and subsidiary instruments should be exempt from
the proposed age discrimination legislation. This is discussed in more
detail below.
In relation to the
discussion in relation to the Corporations Act 2001 (Cth) under
heading 6.9, the Commission notes that in Age Matters, it recommended
[25] that the predecessor to the Corporations Act
be amended to remove the maximum age requirements for company directors,
and therefore welcomes the advice that amendments were introduced on 12
December 2002 in the Corporations Law Amendment Bill 2002 (Cth)
to remove the 72 year age limit in s 201C of the Corporations Act.
In relation to other
Commonwealth laws and programs not otherwise expressly dealt with under
heading 6 of the IP, the Commission supports the proposal in 6.10 of the
IP that the age discrimination legislation exempt acts done in order to
comply with other Commonwealth laws, but that these exemptions be reviewed
two years after the commencement of the age discrimination legislation.
Such a period of review will allow sufficient time for Commonwealth laws
to become compliant with the age discrimination legislation or seek permanent
exemption from the Federal Parliament.
6.7 Defence legislation
As outlined in the
Introduction, since 1990 the Commission has had the legislative function
of inquiring into and attempting to conciliate complaints alleging age
discrimination in employment and occupation. Of those matters that have
led to a report being tabled in the Federal Parliament containing a finding
that an act or practice constitutes discrimination, [26]
a number have involved the Australian Defence Force (ADF) as the respondent
[27] and, in some cases, has led to proceedings in
the Federal Court. [28]
The legislation and
subsidiary instruments relating to the ADF provide the basis for employment
of its members. There are varying age requirements in each of the different
arms of the ADF in relation to matters such as recruitment to certain
positions, transfers and promotion. Ages for compulsory retirement also
vary depending on factors such as rank and position. The Commission is
of the view that the legislation relating to the ADF is in a very different
position to that of other Commonwealth laws and programs, such as social
security legislation, which deal primarily with the provision of and access
to public services. The Commission submits that, except so far as it relates
to minimum age for enlistment and cadet schemes, the ADF should be subject
to the same provisions in the proposed age discrimination legislation
as other employers, including having available to it the inherent requirement
defence which would ensure that the use of age as an arbitrary proxy for
ability would be avoided.
The Commission is
therefore opposed to the application of any exemption (permanent or temporary)
to defence force legislation and subsidiary instruments and reaffirms
the recommendations it made concerning defence force legislation in the
Age Matters report [29] as follows:
- All age-based
requirements for recruitment into the defence forces should be abolished
and alternative non-discriminatory tests of applicant suitability should
be substituted. - All defence force
regulations that specify age limits for positions and/or training or
promotional opportunities should be amended to ensure that selection
is based on the inherent requirements of the position or opportunity
rather than age. - Defence force
legislation and regulations that specify compulsory retirement should
be amended to abolish age based retirement.
7. AGE DISCRIMINATION IN OTHER
AREAS
As a preliminary
point, the Commission notes that the areas of clubs, incorporated associations
and sport, which are included in other federal anti-discrimination legislation,
do not appear to be included in the proposed age discrimination legislation.
In light of the importance of these areas to the lives of many people
living in Australia, then, subject to constitutional considerations, the
Commission would urge that these areas be included in the proposed legislation.
In relation to the area of sport, it may be appropriate to include an
appropriately drafted exception as is included in other anti discrimination
laws. Guidance may be provided by the exception contained in s 42 of the
SDA relating to sport.
7.1 Education
The Commission does
not oppose the proposal that the age discrimination legislation exempt
discrimination in relation to admission to educational institutions where
the level of schooling or training is provided only for students above
a particular age, but recognises that exceptions may be appropriate in
special circumstances. The Commission notes, however, that such age limits
will generally be imposed by State and Territory law which, pursuant to
the proposal in 9.2.2 of the IP, are to be made exempt from the operation
of the proposed age discrimination legislation in any event.
7.2 Accommodation
The Commission considers
that it is appropriate to take an approach consistent with other anti-discrimination
legislation and 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.
7.3 Land
The Commission does
not oppose the proposal that the age discrimination legislation should
not make unlawful discrimination that arises from any testamentary disposition
or by way of gift.
8. OTHER DISCRIMINATION ISSUES
8.1 Harassment
The Commission submits
that the proposed age legislation should prohibit harassment on the basis
of age. This is consistent with the approach taken in other federal anti-discrimination
laws. Greater recognition is being given to the fact that harassment in
itself constitutes a detriment and is a basis for complaint. Practically
this would mean that a person could make a complaint if they had been
subjected to unwelcome and humiliating behaviour on the basis of age.
Harassment provisions also clarify people's rights under the law and help
to encourage appropriate standards of behaviour in the workplace. The
inclusion of a definition of harassment may provide guidance in this regard.
Harassment provisions
in the area of employment are needed to protect both young people and
older workers. The Age Matters report noted that the Commission
received a number of submissions commenting on the prevalence of workplace
harassment and ill-treatment of young people. It found that this is especially
the case for apprentices and trainees. [30]
8.2 Cause, instruct,
induce etc an unlawful act
The Commission notes
that while s 17 of the RDA makes it unlawful for a person to incite the
doing of an act that is unlawful under the RDA or to assist or promote
the doing of such an act, both the SDA [31] and the
DDA [32] provide that a person who causes, instructs,
induces, aids or permits another person to do an unlawful act is taken
also to have done the act. In addition, as well as being made an offence
under the DDA [33], conduct amounting to incitement,
assistance or promotion of an unlawful act under the DDA is also included
in the definition of "unlawful discrimination" in s 3(1) of
the HREOC Act, with the result that a complaint concerning such conduct
can also be made to the Commission under s 46P of the HREOC Act.
The Commission suggests
that the approach taken in relation to incitement in the DDA should also
be taken in respect of the age discrimination legislation. This would
ensure consistency with the most recent piece of federal anti-discrimination
legislation in relation to this issue.
9. GENERAL EXEMPTIONS
9.1 Exemption for 'positive' age discrimination
The Commission supports
the inclusion of a provision in the age discrimination legislation that
provides for 'positive' age discrimination in order to reduce disadvantage
or to meet the special needs of a particular age group. This would be
largely consistent with the special measures provisions that currently
exist in the RDA, SDA and DDA.
The Commission notes,
however, that the proposal at 9.1 appears to extend the concept beyond
the provision in the other federal anti-discrimination statutes, in which
the primary purposes of the special measures provisions is the achievement
of substantive equality. The relevant provisions in the RDA and SDA also
provide that the taking of special measures is not authorised once the
purpose for which they were implemented is achieved. As also noted at
4.5 above, article 5 of ILO 111 provides for special measures in the area
of employment and occupation that are required to provide "protection
or assistance" to workers.
The Commission is
of the view that the Government should be cautious that any extension
of the current understanding of a special measures provision does not
undermine the objective of the proposed legislation to eliminate age discrimination.
If the positive discrimination provision is to be included as proposed
in the IP, it is suggested that consideration be given to some form of
limitation being included, such as the reasonableness of the measure.
9.2 Acts done
under statutory or other legal authority
9.2.1 Exemption
for acts done to comply with Commonwealth laws
The Commission repeats
its submissions set out under heading 6 above.
9.2.2 Exemption
for acts done to comply with State laws
The Commission notes
the potential complexity of the interaction between the proposed Federal
age discrimination legislation, general State and Territory laws which
may contain age based criteria (for example laws in relation to liquor
licensing, tobacco, driving licences etc) and State and Territory anti-discrimination
laws, most of which exempt any act that is done in compliance with the
relevant State or Territory legislation. In light of this, the Commission
does not oppose the proposal that the age discrimination legislation include
a general exemption for acts done in order to comply with State or Territory
laws, but welcomes the additional proposal in 9.2.2 that the proposed
age discrimination legislation include the ability for the Federal Parliament
to prescribe exceptions to the exemption should it consider it appropriate
to do so given the reach that State and Territory laws have on public
life.
9.2.2 Exemption
for court orders and awards
The Commission supports
the proposal that the age discrimination legislation include an exemption
for acts done in direct compliance with orders of a Commonwealth, State
or Territory court or tribunal and notes that this would be consistent
with the approach taken in other Federal anti-discrimination law. In relation
to the reference in 9.2.2 to facilitative provisions in awards, the Commission
reaffirms its submission made at 4.7 above.
9.3 Exemptions
for religious purposes, voluntary bodies, and charitable benefits
The Commission submits
that if an exemption in relation to religious bodies was ultimately considered
necessary, it should only apply where it is necessary to avoid injury
to the religious susceptibilities of adherents to the religion. In the
Commission's view, any such exemption should not be available in relation
to the provision of public services by religious bodies such as employment,
welfare and health services.
The Commission opposes
the inclusion of an exemption in relation to voluntary bodies. Such an
exemption is not included in the RDA or the DDA, the latter being the
most recently drafted piece of Federal anti-discrimination legislation.
In addition, such an exemption is included in only two pieces of State
anti discrimination legislation. [34] The Commission
has found that the inclusion of such an exemption in the SDA limits the
ability of people to make complaints of alleged acts unlawful discrimination
in an important area of public life.
The Commission does
not oppose an exemption in relation to charitable benefits in the same
form as it appears in other Federal anti-discrimination legislation.
10. OFFENCES
10.1 Victimisation
The Commission notes
that as well as being made an offence under each of the RDA [35],
SDA [36] and DDA [37], conduct amounting
to victimisation under those pieces of legislation is also included in
the definition of "unlawful discrimination" in s 3(1) of the
HREOC Act, with the result that complaints of victimisation can also be
made to the Commission under s 46P of the HREOC Act.
The Commission supports
the proposal at 10.1 for victimisation to be made an offence under the
age discrimination in order to reflect the seriousness of such action.
However, it also submits that conduct amounting to victimisation under
the proposed age discrimination legislation should be made unlawful discrimination
under the HREOC Act. Not only would this ensure consistency with other
Federal anti-discrimination law, but would also act as an additional deterrent
to potential acts of victimisation.
10.2 Advertising
The Commission supports
the proposal to make it an offence under the proposed age discrimination
legislation to advertise in such as way that indicates an intention to
unlawfully discriminate on the basis of age. This would be consistent
with the approach taken in the SDA [38] and DDA [39].
However, the Commission also notes that such advertising amounts to unlawful
conduct under the RDA [40] and can also lead to a complaint
to the Commission under s 46P of the HREOC Act if an intention to discriminate
unlawfully on the basis of disability is shown. [41]
The Commission suggests that the latter approach should also be taken
in respect of age. This would ensure consistency with the most recent
piece of federal anti discrimination legislation in relation to this issue.
It may be appropriate for guidelines to be developed in order to provide
guidance in this area.
11. HUMAN RIGHTS AND EQUAL
OPPORTUNTIY COMMISSION FUNCTIONS
The Commission supports
each of the proposals outlined under heading 11.
12. ISSUES RELATING TO STATES
AND TERRITORIES
The Commission supports
each of the proposals outlined under heading 12.
1.
Anti-Discrimination Act, 1977 (NSW) Part 4G; Equal Opportunity
Act 1984 (SA) s 85A; Equal Opportunity Act 1984 (WA) Part IVB;
Discrimination Act 1991 (ACT) s 7(1)(ib); Equal Opportunity
Act 1995 (Vic) s 6(a); Anti-Discrimination Act 1998 (Tas) s
16(b); Anti-Discrimination Act 1991 (QLD) s 7(1)(f); Anti-Discrimination
Act 1992 (NT) s 19(1)(d).
2.
Section 4(a)(i) of the Human Rights and Equal Opportunity Commission Regulations,
1989.
4.
Report No.1 - Compulsory age retirement (1996), Report No.2 - Redundancy
arrangements and age discrimination (1997), Report No.4 - Age discrimination
in trade union membership (1997), Report No.8 - Age discrimination in
the Australian Defence Force (2000), Report No.11 - Discrimination on
the ground of age (2002), Report No.14 - Report of an inquiry into a complaint
by Mr Andrew Hamilton of age discrimination in the Australian Defence
Force.
6.
Report No.1 - Compulsory Retirement Age (1996); Report No.2 - Redundancy
arrangements and age discrimination (1997).
7.
Anti-Discrimination Act 1977 (NSW) s 54; Equal Opportunity Act
1984 (WA) s 69; ACT Discrimination Act 1991 s 30; Equal
Opportunity Act 1995 (Vic) s 69, Anti-Discrimination Act 1999
(QLD) s 106, Anti-Discrimination Act 1998 (Tas) s 24, Anti-Discrimination
Act 1992 (NT) s 53.
8.
Equal Opportunity Act 1984 (WA) s 71; Anti-Discrimination Act
1977 (NSW) s 57.
9.
See definition of "unlawful discrimination" in s 3 of the HREOC
Act.
12.
See the definition of "unlawful discrimination" in s 3(1) of
the HREOC Act and s 44 of the DDA.
13.
As reflected in the current functions of the Commission in s 11(1) of
the HREOC Act, s 20 of the RDA, s 48 of the SDA and s 67 of the DDA.
14.
See s 46PV of the HREOC Act.
15.
See ss 15 to 29 of the DDA.
16.
See ss 11,12, 13 and 15 of the RDA.
18.
Grounds of termination as set out in s 46PH of the HREOC Act include that
the President is satisfied that: the alleged discrimination is not unlawful
discrimination; the complaint was trivial, vexatious, misconceived or
lacking in substance; the subject matter of the complaint has been adequately
dealt with; some other more appropriate remedy is available; or that the
subject matter of the complaint has already been dealt with by the Commission
or by another statutory authority.
19.
See definition of 'contract worker' in s 4(1) of the SDA.
24.
Article 12, International Covenant on Economic, Social and Cultural
Rights. Opened for signature 16 December 1966, 999UNTS 3 (entered
into force 3 January 1976). Ratified by Australia 10 December 1975.
25.
Recommendation 9 at p 111.
27.
Report No.8 - Age discrimination in the Australian Defence Force (2000),
Report No.14 - Report of an inquiry into a complaint by Mr Andrew Hamilton
of age discrimination in the Australian Defence Force.
28.
See, for example, Commonwealth v Bradley (1999) 95 FCR 218 and
Commonwealth of Australia v Human Rights and Equal Opportunity Commission
and Hamilton (2001) 180 ALR 635.
29.
Recommendation 4 at p 110.
34.
Equal Opportunity Act 1984 (WA), s 71; Anti-Discrimination Act
1977 (NSW), s 57.
41.
See the definition of "unlawful discrimination" in s 3(1) of
the HREOC Act and s 44 of the DDA.
Last
updated 13 February 2003.