Addressing Age Discrimination: The Need for Legislation

Speech by Dr Sev Ozdowski OAM, Human Rights Commissioner, to the Council on the Ageing National Congress, ACT, 13 November 2001.

To read the Background Paper to Dr Ozdowski's speech on age discrimination click here.

Distinguished guests, ladies and gentlemen, thank you for inviting me to be here today. Firstly, I would like to acknowledge the traditional owners of the land on which we are now meeting, the Ngunnawal people.

Recognising the traditional owners - an important part of Aboriginal culture - reflects respect for the elders of this land.

My speech today is actually based on a more detailed discussion paper on this issue that is available on the Human Rights and Equal Opportunity Commission website. Please let me know after my address if you do not have Internet access and I will organise for you to receive a hard copy of the paper.

I am very impressed by COTA's work in advocating for the rights and interests of older Australians. I would particularly like to note the excellent work undertaken by COTA in addressing the problems associated with the 'digital divide'.

While the digital age has offered many advantages in terms of communication, information and financial management there are two groups of Australians who continue to be on the wrong side of the digital divide - these are people with disabilities and older Australians.

Last year we completed an inquiry on the issue of accessible e-commerce and made recommendations about ways in which the digital divide might be bridged.

Following release of the report the Commission, in co-operation with the Australian Bankers Association, set up an Accessible E-commerce Forum, which includes representatives from the disability community, and COTA.

COTA has been working with financial institutions for many years on banking issues for older Australians and the knowledge and experience gained has added considerably to the work of the Forum.

I will soon be issuing a report reviewing developments in the area of accessible e-commerce which I am sure will be of interest to COTA and its members.

Older Australians are the guardians and inheritors of our diverse traditions, knowledge and strengths. I am here today to talk about ways of channelling that strength which respect both human rights and economic and business imperatives.

Let us start with an example of age discrimination, one which shows clearly that with this type of discrimination, we are all the losers. We all grow old one day, so we all stand to lose if this type of discrimination is allowed to endure.

Imagine that you are a skilled airline pilot, and because of company policy you are forced to retire at sixty, despite the fact that you meet all the stringent physical and psychological health requirements for flying a plane.

The company, a national airline, has invested many thousands of dollars in your ongoing training, and now - instead of continuing to reap the benefit of that - it is bidding your expertise farewell.

You, on the other hand, face further discrimination while trying to find another job, and you have not yet saved sufficient superannuation to finish paying off your mortgage or to provide for your retirement.

Under current legislative arrangements, you have no avenue of appeal other than to the Human Rights and Equal Opportunity Commission, which is only empowered to make recommendations on age discrimination, not to deliver judgments with the force of law.

Looking into the future, with Australia's rapidly ageing population and the high cost of pilot training, any national airline with such a policy may well find - in the search for a suitably trained labour pool - that replacing old pilots with young ones becomes quite difficult.

The older pilot who has been sacked may need to take a job in Singapore or Bangkok, while in times of market expansion the original Australian employer may search those same markets for qualified people. Everyone loses here: the employer, the employee, and the Australian economy.

As our growing older population collides head on with ill-informed recruitment and retirement policies, age discrimination is increasing. The Human Rights and Equal Opportunity Commission received over three times as many age discrimination complaints in 2000-2001 compared to 1999-2000.

At present, about 33 per cent of Australians between the ages of 50 and 64 rely on some form of social security payment and 46 per cent do not have paid employment. This situation will very soon become unsustainable.

Around 170,000 people enter the labour force each year. A recent Access Economics report suggests that for the entire decade of 2020-2030, this annual number will fall to just 125,000 people. This is because twelve percent of our population is now over 65, and this number continues to rise with falling birth rates and falling immigration.

These statistics point to one clear economic and business imperative for recruiting, retaining and promoting older people. To find the best employees, no employer will be able to afford to remain confined to the shrinking new labour force demographic. Only by drawing on the widest possible field can the most qualified person be found.

Also, for businesses, older employees will provide an expert perspective on meeting the needs of our fastest-growing market: older Australians.

Like all discrimination, age discrimination is based on perceptions and stereotypes which are not borne out by the facts. Older people are presumed to have outdated skills, and to be technologically incompetent, inflexible and unwilling to retrain. Yet a 1999 Drake Limited study indicated that 86% of senior workers surveyed would gladly accept any training opportunities offered to them.

Like all generalised presumptions, those I have just mentioned fail to reflect reality. Individuals of any age can be inflexible, or incapable of adapting to change. International and local research suggest that, with the exception of jobs involving great physical effort, little difference in capacity results from employees growing older.

Where intellectual skills are required, productivity may actually rise with age. Older workers are often found to be reliable, stable and loyal, with a strong work ethic. Based on qualities of judgment and maturity, they can also be excellent mentors for younger workers.

I believe that to channel these strengths, national legislation against age discrimination should be developed. At the same time, there needs to be a national education campaign on the benefits older workers can provide to business and the community. Only these dual strategies can really begin to address the issue.

I welcome the promise by the incumbent Liberal government to introduce age discrimination legislation at the federal level, and keenly await the resolution of its content. Over the past year I have strongly lobbied the government to develop age discrimination legislation, as I believe that sitting alongside race, sex and disability discrimination legislation, it is the last vital missing piece in the Australian equality legislative regime. I am very pleased that in some small way my importuning may have assisted in getting this policy change over the line.

National anti-age discrimination legislation will now bring the federal government in line with its obligations under international human rights law. The human rights imperative for ensuring that everyone is free from discrimination on the basis of age has been recognised both at the State and Territory level and internationally. The European Council has issued a Directive requiring member States to develop legislation prohibiting all employment-related discrimination, including age discrimination, by December 2003.

The International Covenant on Economic, Social and Cultural Rights, to which Australia is a State Party, provides that all signatories must recognise "the right of everyone to the opportunity to gain his living by work" (Article 6(1)) and "equal opportunity for everyone to be promoted in his employment."

Both this Covenant and the International Covenant on Civil and Political Rights (to which Australia is also a party) require that all the human rights protected by those treaties shall be exercised without discrimination.

Article 26 of the Civil and Political Rights Covenant mandates that "all persons … are entitled … to the equal protection of the law," and that "the law shall prohibit any discrimination … on any ground … such as, [inter alia], birth or other status."

While all Australian States and Territories must be praised for their implementation of laws prohibiting age discrimination in employment, education, training, accommodation, goods and services and clubs, the extent of protection varies. Importantly, this protection also does not extend to federal employees.

The federal legislation will serve the important functions of extending protection from age discrimination to federal employees, and filling the different gaps in State and Territory legislation. The Commonwealth could do the latter either by agreement with the States, or under its Constitutional foreign affairs power, based on its ratification of the international human rights treaties that I have just discussed.

The lack of federal legislation also hampers redress for the arbitrary age-based restrictions prevalent in the superannuation industry. Differing State and Territory anti-age discrimination laws are problematic for superannuation funds operating multi-jurisdictionally Australia-wide. Compliance therefore becomes difficult, with potentially unfair results for fund members and employees.

New federal legislation covering all Australians would provide an opportunity to mould States' legislative best practice into a single coherent national document - which States could then also utilise for any legislative and policy reforms at that level should they so wish.

With legislative action, national airline pilots such as those I mentioned in opening this speech - and others who are not protected by current laws - might then have an effective remedy for violations of their human rights, the rights which we would all like to enjoy. The right to equal opportunity. To be free from discrimination based on stereotypes with no factual foundation.

It is important that the government now enter into consultations with stakeholders regarding the content and shape that age discrimination legislation will take, to ensure that we have the best legislation available. It will be important, for example, that the legislation cover contexts such as employment, access to goods and services, training and education, among others contexts.

National legislation would also provide a backbone for an education campaign about the strengths to be found among our older population, strengths that we ignore at our peril. I am now calling on the new government to commence its education campaign to address stereotypes associated with age immediately. The campaign will hopefully gain strength throughout the period of legislative consultation and development, and provide a more receptive climate for the introduction of legislation at the earliest opportunity.

With federal legislation, State and Commonwealth bodies with anti-discrimination mandates will have a stronger, clearer basis for working together with employers, workers, educators and the media to address age discrimination in Australia.

Working with the media can have salutary effects on public perceptions. Steven Spielberg has made films about the radiance and wisdom of older people, and Blue Heelers' Tom Croydon, a TV character with warts and all, is a clear example of just how strong an asset the qualities of judgment and maturity can be for any workplace. Advertising about training need no longer limit itself to images of young people, as is usually the case at present.

For it is only when all people, regardless of age, are allowed to contribute to Australian society based on ability - with no false presumptions standing in their way - that our economy will grow to its fullest potential. I hope that we can continue to work together toward achieving that goal. Thank you.

Last updated 1 December 2001