Thursday 6 May 2010

‘Is it Time for a Convention on the Rights of Older People’

Speech by Elizabeth Broderick
Sex Discrimination Commissioner and Commissioner responsible for Age Discrimination

Australian Human Rights Commission

International Federation of Ageing

Thursday 6 May 2010

I want to thank the International Federation of Ageing and the Council for the Ageing for the invitation to speak here today. And I particularly want to thank you the audience for being here at this last session which demonstrates an unbelievable commitment! Let me begin by acknowledging that we are gathered today on the land of the Wurundjeri People of the Kulin Nation and pay my respects to their elders – past and present. We honour them for the custodianship of this land on which we gather today. Let me also pay my respects to all elders of all ethnicities who have for many years spoken out for equality.

Paying my respects to the indigenous elders of this country gives me pause to reflect on the change in the recognition of indigenous rights at the international level. In 2007 the General Assembly adopted the UN Declaration on the Rights of Indigenous People. It is an aspirational human rights instrument which establishes a valuable framework for resolving issues and achieving the common objectives of the international community and the UN Charter.

Which brings me, as the Australian Commissioner responsible for age discrimination (and also the Australian Sex Discrimination commissioner), to the focus of this presentation - what about the rights of older people? How can they best be promoted and protected? Is it time for a Convention on the Rights of Older People?

This issue has had increasing attention at the international level and has been touched on in a number of the conference sessions over the past three days.

The advisory committee to the United Nations Human Rights Council[1], the Madrid report to the 2009 General Assembly and the UN Dept. on Economic and Social Affairs all emphasised the need to better protect older peoples’ rights. Suggestions for better protection include enhanced UN Principles on the Rights of Older Persons, a special rapporteur, a declaration and a convention.

So why is this increasingly becoming an issue now?

What has changed?

It is true that the intrinsic importance of fundamental human rights do not change. But external circumstances can make the issues of a vulnerable group, such as older people, more visible. In this case the consciousness of global ageing.

Many speakers have referred to the global ageing profile. The United Nations Population Division estimated that in 2009, 737 million persons were aged 60 years or over, with nearly two-thirds living in developing countries. This number is projected to increase to 2 billion in 2050, by which time older people will outnumber children under the age of 14 years. In Europe, one in every five people are currently aged 60 and over. And population ageing is advancing faster in developing countries than in the developed countries, where population ageing is more advanced.[2]

And Australia is no different. Unsurprisingly the trend here of a significant shift in the age cohort, reflects the trend of many other comparable developed countries. In Australia, nearly one quarter of Australia's population will be aged 65 and over by 2050, compared with 13.5 percent today.[3]

Globally, more and more people will have a longer life expectancy. With rapid advances in medical technology taking place at a pace never seen before, the idea of a significant proportion of people living into their hundreds no longer seems far-fetched. What was once firmly in the realm of fantastical science fiction has now become the realm of real scientific probability.

How are societies responding? Where will governments’ focus be? Will they focus on the implications of ageing for health expenditure? Or perhaps on the ageing workforce? Too often their response - indeed the entire issue - is characterised as a ‘problem’ and a ‘burden’.[4]

In Australia, the federal government has announced a shift of the age at which you can access the age pension. A similar trend has been noted in other comparable OECD countries and most recently with the reported changes to the pension age forming part of the bailout terms in Greece.[5] This is a standard policy response which clearly signals that, as we are now living longer, we should logically be working longer. This is a double edged sword, on one hand revealing the growing realization of the productive possibilities such a solution can create. Yet, as my work at the AHRC has shown, it also reveals the all too clear societal response to ageing – and that is entrenched, invisible age discrimination which strips the person of both choice and control.

The focus of my work in age discrimination has been to identify barriers to mature-age workforce participation. In 2008-09, I consulted with a cross-section of stakeholders, from peak community bodies, service providers, academics, unions, and employer groups, to relevant sections of government. Age discrimination emerged as the foremost barrier to the workforce participation of mature age workers - systemic age discrimination. It manifested from the point of recruitment in job advertisements seeking ‘young and dynamic’ people, to not wanting to see the CV of ‘anyone over 40 years old’, to not-so-innocent interview questions, such as ‘how old are your children’ and ‘what year did you finish high school’. In fact, newspapers have even run articles that provide ‘cosmetic tips on how to hide your age in your CV’!

But it doesn’t stop at recruitment. I heard stories of age discrimination taking place in relation to promotions and training opportunities. And I also heard stories of age-based bullying, harassment and situations of forced retirement.

Let me share a quote from a letter a women sent me:

I live in an area where ageism is rampant and I am currently studying a Masters in Human Resource Management...which is obviously up-to-date in terms of job skills ... it does not make one scrap of difference in the job market. I have 3 other degrees as well, and these too, fit in contemporary markets. I’m 54 and no-one wants me. It is very disillusioning. The only job I have is [as a] casual...and that’s all I can get.

This situation illustrates the way age discrimination cuts across merit. When age-based stereotypes, rather than individual merit, are used to define you, then all the training and skills in the world amounts to nothing. Even more disturbingly, I came across people who had started to believe these stereotypes themselves – thinking, ‘It’s me – I must be a failure’. This reaction leads to people self-selecting out of opportunities. And there is no clearer indication of an accepted and deeply entrenched form of discrimination than internalised discrimination. This problem was further underlined by a comment one employer made to me - that the ageist attitudes found in the workplace are just symptomatic of broader ageist attitudes in society.

My point is that, in considering this issue, we should keep in mind that all forms of discrimination flourish within a broader context of systemic social norms which pervade all areas of public life. In our ageist society, people are generally healthier and living much longer, yet their better health outcomes are, perversely, seeing them cast as a negative burden. At a certain age, older people in our communities stop being seen as ‘human beings’ and start being seen as a ‘problem’.

The human rights of a vulnerable and important part of our society are being put at serious risk.

Which brings me to our main question today: Can an international convention help?

This is not a simple question to answer. Rather than just saying yes or no in answer to this question, I will examine three aspects of the decision process in relation to considering such a convention.

Firstly, I will be looking at why a human rights framework may be useful in the protection of such rights.

Secondly, I’ll look at the advantages – and arguments against – adopting a convention.

And finally, I’ll talk about an existing successful convention that I think can be used for comparison purposes, namely the Disability Convention.

So why a human rights framework? Human rights are the basic rights that every person should enjoy if they are to live with dignity and respect. Human rights are essential for promoting an inclusive society in which all people freely participate. They belong to everyone. We all have the right to be treated with respect by others, to be treated fairly by government and to have a voice in our communities.

Human rights are not some vague – nice to have – concept. They matter. The modern international human rights system has its origins after the Second World War. Nazi Germany committed unthinkable atrocities against their own people because of their religion, their race, their ability or their sexuality. The tragedy of the Holocaust lead to a determined effort by the international community to do what it could to prevent this happening again. Through the adoption of the UN Charter in 1945, the international community agreed that there are basic human rights that every national government must respect. The UN Charter made it clear that there are limits to the action that government can take against its people. This consensus recognised that freedom and equality were critical to world peace and equally critical to a just and secure modern nation.

From this time, over 60 years ago, the international community has adopted important international instruments that have elaborated our human rights. First there came the 1948 Universal Declaration of Human Rights, followed in 1966 by the two general human rights treaties, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. There are now also important conventions that set out the human rights of certain groups of people, including the rights of refugees, women, children, and most recently, for people with disability. Australia is a party to all of these international conventions.

So, let’s look at the extent to which the rights of older people are currently protected within the existing international human rights framework. Are there any potentially binding protections?

In article 25(1), the Universal Declaration of Human Rights makes its only reference to the right to security in old age. However, the rights of older persons are not expressly mentioned in either the International Covenant on Civil and Political Rights[6], or the International Covenant on Economic Social and Cultural Rights[7]. So for example, the rights contained in the International Covenant on Civil and Political Rights apply to individuals regardless of distinctions such as race, colour, sex, language, religion, political or other opinion, national or social origin, property birth or ‘other status’.

There is no mention of age.

However, the reference to ‘other status’ has been interpreted to include ‘age’.[8] Accordingly the provisions of the covenants will apply to all citizens, including older citizens, of the countries who are signatories. Additionally in the area of employment, International Labour Organisation Conventions[9] provide that persons over a specified age[10] should be paid a pension and that career guidance and training must be provided without discrimination as to age.[11]

Unfortunately, within the mainstream frameworks of these international instruments, it is argued that not everyone’s human rights are respected in the same way. The pervasive nature of systemic disadvantage means that certain groups are more likely than others to experience problems with the full realisation of their human rights.

This is where the specific protection of vulnerable groups becomes important. For example, if we look again at the Declaration on the Rights of Indigenous People, which I mentioned at the beginning of my speech, there is commentary that has argued:

By particularizing the rights of indigenous peoples, the Declaration seeks to accomplish what should have been accomplished without it...It does not create for them new substantive rights that others do not enjoy. Rather, it recognizes for them rights that they should have enjoyed all along as part of the human family, contextualises those rights in light of their particular characteristics and circumstances, and promotes measures to remedy the rights’ historical and systemic violation’.[12]

On this basis, I would argue that older people are one such vulnerable group who, as a result of historical and systemic disadvantage as a group, are not in a position to equally realise and enjoy their human rights. And if we consider the global experience of older people between the developed and developing countries, these breaches can be brutal in their severity.

However there are a number of non-binding instruments at the international level that do recognise older people as a group. Four examples are:

  • The Vienna International Plan of Action on Ageing, endorsed by the United Nations General Assembly in 1982, contains 62 recommendations for governments and civil society to manage ageing and to address the needs of older persons.[13]
  • The UN principles for older people, adopted in 1991, sets out 18 principles to be incorporated into national policies that promote the independence, participation, care, self-fulfilment and dignity of older persons.
  • The Madrid International Plan of Action on Ageing, adopted in 2002, requires that states take measures to address ageing so that a society for all ages can be achieved.
  • And a number of regional human rights treaties also contain provisions on the rights of older people.[14]

Certainly, by identifying older people as a group within a framework of rights, allows for a more systemic view of issues of discrimination. One in which, for example, forms of employment discrimination can be viewed within a broader context of ageism and interconnected rights.

But while these instruments recognise older people’s rights as a vulnerable group, they are non-binding in nature. And this is where the role of a possible convention - one which not only recognizes the vulnerability of older people’s rights as a group, but is binding on countries which enter into it - becomes useful to consider.

Which brings me to my second area of discussion. What are the advantages of having a convention?

Symbolism is one. Some of the reasons advanced for the development of a convention include the undeniable symbolic force of a convention itself. Arguably, without a convention that specifically identifies and protects older people, the issues of older people will continue to fall between the cracks of mainstream human rights instruments. The ‘gap’ at international law is the absence of a single comprehensive document which sets out obligations relating to older people. In a practical policy sense, this ‘invisibility’ has very real consequences in terms of getting the issues of older people onto the policy agendas of international human rights bodies, governments and NGO’s.

The express reference to ‘age’ in a convention is another advantage. A number of leading age-based NGO’s consider that the absence of an express reference to age in human rights conventions means that age is often overlooked by the human rights world itself.[15] They see it as problematic that human rights standards that protect the rights of older people are scattered throughout various international and regional conventions. This creates the risk that these rights remain invisible and makes their exact identification difficult.[16]

The NGO, HelpAge International, has even pointed to the way that the treaty bodies, tasked with monitoring how human rights treaties are implemented, rarely ask countries to include older people in their reporting. Similarly, the existing system of human rights ‘monitors’ within the international sphere, such as special rapporteurs and independent experts on human rights, fails to provide adequate consideration of the rights of older people.[17]

This leads to silence at the international level on important areas that affect older people.

This is of particular concern when you consider the tendency of governments to track their progress against their express international obligations, such as those contained in international instruments and conventions that they have specifically signed and ratified – instruments where the rights of older people are largely invisible.

Indeed, there are advantages for governments in a convention. For a government, a convention can be used, not only to identify and frame these human rights, but also to articulate programs that it should put in place in order to ensure these rights are adequately protected.

By entering into a convention, a country and its government agree to be bound by the terms of the Convention.[18] Thus, countries that ratify the convention would be legally obliged at the international level to adopt non-discriminatory laws and revise existing legislation if it is found to be discriminatory.

A convention can improve reporting and provide a mechanism that would make governments more accountable for their actions towards older people. This could involve a process where individuals can complain of a breach of the convention to an international committee of experts. However one limitation is that the country in question has to specifically agree to be subject to this kind of complaints process.[19] Also even if a country signs up to a convention it would still need to pass laws at the domestic level that reflect the provisions of the convention for it be of any real practical effect.

A convention also specifies a measure or a ‘minimum standard’ below which the government should not fall. This is particularly important where, for example, the vulnerable group is large and are viewed by policy makers as attracting significant government funds whether or not that is true. Older people are generally seen as one such group.

Additionally, a convention might assist in the much bigger challenge of combating systemic ageism. Its role here lies in its usefulness in promoting positive attitudinal change throughout communities. For example, in helping shift views of older people as ‘recipients of charity’ to ‘individuals with rights, knowledge and power’.[20] The very process of creating a convention could have the effect of increasing the visibility of older people within our societies and of drawing attention to the forms of discrimination that they face. It could also provide a very useful focal point for co-ordinated domestic and global advocacy, as well as for public awareness and education campaigns and could assist in building an all-important social movement around these issues.

Of course, arguments are levelled against the development of a convention on the rights of older people. These arguments include issues such as ‘convention fatigue’ – that is, that the world has a sufficient number of human rights conventions. A related argument is that the implementation of a convention and establishment of committees and monitoring bodies would also be expensive. Others argue that the human rights of older people are better dealt with by specific implementation into the domestic laws of a country. And some have said, well when the impact of the demographic change passes there will no longer be a need, so why bother?

We are not looking at a case of human rights by numbers. We are dealing with a simple human issue. It is the issue of how to protect the human rights that are owed to and belong to a particular vulnerable group of people – a group that most likely, we will all eventually become part of.

In my final area of discussion, I want to tap into the expertise of the Australian Human Rights Commission which has been involved in the advocacy of international conventions in areas such as the rights of the child and in disability rights. The area of disability presents a useful comparison for assessing the importance and the possible impact of a Convention on the Rights of Older People.

In the past, disability, just like age, was not expressly referred to in the primary human rights instruments – the Universal Declaration of Human Rights and the two Covenants which I have mentioned earlier. A clear international consensus emerged among disability advocates that a specific Convention on disability and human rights was required. And after approximately 17 years the Convention on the Rights of People with Disability was born. It provides a much clearer framework for social change that will help ensure that human rights for people with disability in Australia and across the world are protected. The Disability convention provides a ‘start line’, because its provisions require action by government in many areas. It also makes it plainer than previous human rights conventions that ratification is a commitment to a program for action.

The Disability convention states that parties will take into account the protection and promotion of the human rights of persons with disabilities in all policies and programs.[21]

I think reflecting on the proactive nature of the Disability convention is particularly important – it points to the fact that some styles of convention require more action from countries than others.

The Australian Government’s announcement in 2008, that it would develop a National Disability Strategy, was a welcome response to the Disability convention’s requirement to actively implement its provisions. In its submission to the National Disability Strategy, the Australian Human Rights Commission was able to make recommendations to government for specific action in a diverse range of policy areas that would assist the government to satisfy its obligations under the Disability convention.

The Commission detailed:

  • strategies for co-ordination and monitoring between the federal and state governments in Australia;
  • disability strategies to be developed by each government department based on the obligations of the Disability convention;
  • strategies for government to identify actions required to fulfill obligations, and
  • strategies for promoting the replication of successful approaches, including dissemination to local government, private sector and other organizations.

So what can we learn from the Disability convention?
A convention could address gaps in coverage that occur at both the international level and within the domestic laws of countries. HelpAge International (I know there are a number of representatives here today and thanks for your important work), cite numerous examples of areas they believe lack protection at the international level.

These include:

  • rights within long-term care settings (both for the carer and for the care recipient);
  • legal capacity and equality before the law under guardianship; and
  • violence and elder abuse.

They also argue that existing human rights law offers only limited protection against the negative actions of the private sector, individuals and families and to the specific vulnerability of older women.[22]

By way of example, let’s now briefly apply provisions in the Disability Convention to two areas relating to the rights of older people, as they currently exist in Australian domestic laws – aged care and the aged pension.

The Disability convention provides that people with disabilities have the opportunity to choose their place of residence, including where and with whom they live, on an equal basis with others and are not obliged to live in a particular arrangement. They should also have access to a range services to support living and inclusion in the community, and to prevent isolation or segregation from the community.

A Convention on the Rights of Older People could adopt a similar provision in relation to the provision of aged care. Such a provision would not be directly inconsistent with Australian law because the law provides that older persons in need of care shall receive it. However, if such a provision was incorporated into Australia’s domestic law, it could perhaps be used in circumstances where individuals claim to have not received the level or type of care that they require.

This specific issue was highlighted recently in the United Kingdom in a real-life story of a husband and wife who had lived together for over 65 years. He was unable to walk unaided and relied on his wife for mobility. She was blind and used her husband as her eyes. They were separated after he fell ill and he was moved into a residential care home. She asked to go with him, but was told by the local authority that she did not fit the criteria. A public campaign was launched arguing that the local authority had breached the couple’s right to respect for family life. The authority agreed to reverse its decision and offered the wife a subsidised place so that she could join her husband in the residential care home.[23]

In terms of the aged pension, International Labour Organisation Conventions require that old-age benefits be paid to persons over 65 or ‘such higher age ...with due regard to the working ability of elderly persons in the country concerned’. If this provision was contained in a Convention on the Rights of Older People, there would be no inconsistency with Australian law as our law provides for aged pensions according to a person’s working ability.

Unlike the situation I outlined in aged care, the aged pension issue within the Australian context may arguably remain largely unaffected by the introduction of a convention. These are just 2 examples of the impact a convention may deliver – one more far-reaching than the other.

So, while a convention may not address everyone’s concerns, is it time for a Convention on the Rights of Older People?

At the very least, it’s certainly time for a comprehensive debate on the issue!

We live in a world where older people make up a major sector of our populations, worldwide. We will be older people for longer than ever before and we will be greater in number. The level of human rights that we have always been owed will not go away or change simply because we have reached a certain age. But the temptation to brand people in this large and expanding group as a costly problem will likely escalate.

Today, I have illustrated that, for many reasons, older people are a vulnerable group who require specific recognition of their human rights. Therefore I welcome the sort of additional binding recognition of older people’s rights at the international level that a convention would bring. And need I remind us all that a convention is also a powerful advocacy tool which we can use to seek improvements at the national level.

Whether or not the fact of a globally ageing population has brought this issue to the fore, the real challenge is how we can ensure that the rights of older people receive adequate protection. And older people must have a voice in articulating the problems and the potential solutions. It is older people who should be the architects of their own destiny.

We must fight the corrosive effects of ageism and age discrimination. It is about ensuring people have choice and control in their lives and are treated with respect and dignity. These are the conditions required for true social inclusion and this is what we, as a global community, must all strive to deliver.

Thank you very much.

[1] The Advisory Committee is made up of independent experts. Its role is to provide the Human Rights Council with evidence and recommendations on human rights issues.
[2] United Nations Development of Economic and Social Affairs Population Division, World Population Ageing (2009). Available at (viewed 28 April 2010).
[3] Department of Treasury Australia, Australia to 2050: Future Challenges, Intergenerational Report (January 2010) at 9.
[4] See for example Christine Jeavans, Welcome to the ageing future, (29 November 2004). Available at (viewed on 28 April 2010) or James Owen,
Burden of Aging Population ‘Less than feared’, Study says (8 June 2005). Available at (viewed on 27 April 2010).
[5] Department of Treasury Australia, Chapter 5.2 ‘Age Pension and superannuation preservation ages’ in Australia’s Future Tax System, The Retirement Income System: Report on Strategic Issues (May 2009) which states that ‘many other OECD countries have recognised the need to change the Age Pension age. Iceland, Norway and the United States have already increased the pension age to 67 years and Denmark, Germany and the United Kingdom, are in the process of increasing the pension age to 67 years, or in the case of the United Kingdom, 68 years’. Available at (viewed 27 April 2010). See also
[6] See Articles 2(1) and 26 of the International Covenant on Civil and Political Rights entry into force 23 March 1976. Available at (viewed 28 April 2010).
[7] See Article 2.2 of International Covenant on Economic, Social and Cultural Rights entry into force 3 January 1976. Available at (viewed 28 April 2010).
[8] Schmitz-de-Jong v Netherlands as cited in S Joseph, J Schultz and M Castan, International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd ed) (2004) at [23.24] “The HRC has accepted that ‘any other status’ encompasses discrimination based on age”. See also General Comment 6 The economic, social and cultural rights of older persons where the Committee on Economic Social and Cultural Rights considered the issue of whether the prohibition of discrimination under Article 2(2) of International Covenant on Economic Social and Cultural Rights applies to discrimination on the grounds of age.
[9] International Labour Organisation Convention No.102 Social Security (Minimum Standards) Convention, 1952; Available at (viewed 30 April 2010); Invalidity, Old-Age and Survivors' Benefits Convention No.128,1967; Available at (viewed 3 May 2010); Australia is not a party to either.
[10] 65 or such higher age as may be fixed by the competent authority with due regard to the working ability of elderly persons in the country concerned.
[11] International Labour Organisation Convention No.142 Human Resources Development Convention, 1975; Available at
[12] S James Anaya, ‘Why there Should Not Have to Be a Declaration on the Rights of Indigenous People’, in S James Anaya International Human Rights and Indigenous Peoples (2009) at 63.
[13] United Nations Programme on Ageing, Vienna International Plan of Action on Ageing (2002). Available at (viewed 30 November 2009).
[14] Article 17 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic Social and Cultural Rights “Protocol of San Salvador”, Articles 46 and 47 of the Andean Charter for the Promotion and Protection of Human Rights, Article 25 of the Charter of Fundamental Rights of the European Union, Article 12 of the Revised European Social Charter and Article 18 of the African Charter on Human and People’s Rights.
[15] HelpAge International, Why it’s time for a convention on the rights of older people, Position Paper (2009). Available at at 4 (viewed 28 April 2010).
[16] HelpAge International, Why it’s time for a convention on the rights of older people, Position Paper (2009). Available at at 4 (viewed 28 April 2010).
[17] HelpAge International, Why it’s time for a convention on the rights of older people, Position Paper (2009). Available at at 7 (viewed 28 April 2010).
[18] Article 26 of the Vienna Convention on the Law of Treaties 1969 states that every treaty in force is binding upon the parties to it and must be performed by them in good faith.
[19]First Optional Protocol to the International Covenant on Civil and Political Rights, Optional Protocol on the Elimination of discrimination Against Women, Article 22 Convention Against Torture, Article 14 Convention on the Elimination of Racial Discrimination and the Optional Protocol to the Convention on the Rights of Persons with Disabilities.
[20] HelpAge International, Strengthening Older people’s Rights: Towards a UN Convention, p 8
Available at (viewed 30 May 2010).
[21] Note that this does not mean ‘in all policies and programmes that are expressly directed to disability’ but a whole-of-government approach to all policies and programs.
[22] HelpAge International, Why it’s time for a convention on the rights of older people, Position Paper (2009). Available at at 4 (viewed 28 April 2010).
[23] British Institute of Human Rights, The Human Rights Act – Changing Lives (2nd ed) (2008) at 14.