Section 44 of the Age Discrimination Act 2004 (Cth) gives the Commission the power to grant temporary exemptions from certain provisions of the Act. Temporary exemptions may be granted for up to five years at a time and may be granted subject to specified terms and conditions. The effect of a temporary exemption is that discrimination covered by the exemption is not unlawful under the Act while the exemption remains in force. Because the Act already provides general exemptions (Division 4 Part 4 of the Act – ss 33-43) and because any temporary exemption must be consistent with the objects of the Act, the circumstances in which it will be necessary or appropriate to grant such exemptions will be limited.

The Act does not set out in any detail the criteria or procedures that the Commission should use in considering applications for temporary exemption. Section 44 of the Act simply provides the Commission with a discretion to grant such exemptions.

Because of the importance of the power to grant exemptions, and its potential impact on rights and obligations under the Act, the Commission has developed guidelines to assist the Commission in exercising this discretion. By publishing these guidelines, the Commission also aims to assist interested parties in having an effective say in decisions about possible exemptions that may affect their interests.

 

Current applications for temporary exemptions 

Carnival Australia temporary exemption application

The Australian Human Rights Commission has received an application from Carnival plc (trading as Carnival Australia).

The application is made pursuant to section 44(1) and section 44(2) of the Age Discrimination Act 2004 (Cth) (the ADA).

Carnival seeks to restrict the participation of persons under the age of 19 on its cruise ships departing an Australian port between 1 November and 7 January annually, unless accompanied by a responsible adult. Carnival also seeks to have a quota of 60 passengers per cruise who are under 19 years of age and not accompanied by a responsible adult, on cruise ships departing an Australian port between 8 January and 31 January annually. 

An initial exemption was sought by Carnival in 2010 and was granted by the Commission on 21 December 2010. The initial exemption was for a period of 2.5 years. Two subsequent exemptions were then sought by Carnival and were granted by the Commission on 15 November 2013 and 22 June 2017, respectively. The exemption granted in 2013 operated for a period of 2.5 years and the exemption granted in 2017 operated for a period of 1 year. Carnival is now seeking a further exemption for an additional period of 2.5 years, on the same terms and conditions as the exemption granted by the Commission in 2017.

A copy of the application, and submissions made by Carnival Australia in relation to the applicationPDF icon can be found here.

A copy of the Commission’s guidelines for making decisions regarding temporary exemptions under the ADA can be found below:
https://www.humanrights.gov.au/temporary-exemptions-under-age-discrimina...  

Request for submissions

Submissions in response to this application are sought by 10 December 2018. Submissions should preferably be made in electronic format, and may be made to legal@humanrights.gov.au
Submissions should address the following issues:
• Would an exemption in this case be consistent with the objects of the ADA?
• Should an exemption be granted irrespective of consistency with the objects of the ADA?
• What are the reasons in favour of granting an exemption?
• What is the impact on individuals and others if an exemption is granted?
• Are there conditions which should be imposed on the granting of an exemption in this matter?

Uber temporary exemption application 

The Australian Human Rights Commission (Commission) has received an application from Portier Pacific Pty Ltd, Uber Portier B.V. and their affiliates (together, Uber) for a temporary exemption to the Age Discrimination Act 2004 (ADA).

The application is made pursuant to s 44(1) of the ADA.

The exemption is sought for a period of five years and relates to persons under the age of 18 being able to download the Uber smartphone application (Uber App) to become Uber Eats ‘delivery partners’.

A copy of the application can be found below:

UBER Exemption Application.pdf

A copy of the Commission’s guidelines for making decisions regarding temporary exemptions under the ADA can be found below:

https://www.humanrights.gov.au/temporary-exemptions-under-age-discrimination-act-2004-cth

The Commission's preliminary view - 8 October 2018

On 8 October 2018, the Australian Human Rights Commission issued its preliminary view in this matter. PDF icon The preliminary view can be found here.

Responses to the Commission's preliminary view

Applicants' response to the Commission's preliminary view

Uber's response to the Commission's preliminary view PDF iconcan be found here.

Request for submissions

The Australian Human Rights Commission invited interested parties to make submissions.

The closing date for written submissions was 29 June2018.

The following submissions were received by the Commission:

Submission No.Organisation/IndividualSubmission 
1National Children's and Youth Law CentrePDF iconNCYLC Submission.pdf
2Anti-Discrimination Board of NSWPDF iconNSW ADB submission.pdf

Response by Uber to the submission received by the National Children's and Youth Law Centre 

Uber response to NCYLC submission.pdf

Commission decisions on applications for temporary exemptions

Current applications and decisions

ApplicantSummaryDecisionDate gazettedDate of expiry 
Carnival AustraliaApplicant seeks to restrict passengers under 19 years of age from travelling on its cruise ships 

Granted 

Decision_Gazette

Decision_Gazette

26 June 201722 June 2018

 

Past decisions (expired)

 

ApplicantSummaryDecisionDate gazettedDate of expiry
Carnival AustraliaApplicant seeks to restrict passengers under 19 years of age from travelling on its cruise ships.

Granted

Decision PDF

Decision WORD

28 November 201315 May 2016
Caloundra GardensApplicant seeks to restrict residence at Caloundra Gardens Retirement Village to persons over 50 years of age.

Granted

Decision PDF 

Decision DOC 

16 May 20123 May 2015
NSW Department of Family and Community Services, Ageing Disability and Home CareApplicant seeks to restrict admission to a licensed boarding house to persons over 18 years of age.Granted
Decision PDF
Decision WORD

 
25 January 201218 January 2013
Carnival AustraliaApplicant seeks to restrict participation in its cruises to persons over 19 years of age, unless accompanied by a responsible adult, between 1 November and 7 January annually; and permit a quota of 60 passengers per cruise who are under 19 years of age and not accompanied by a responsible adult between 8 January and 31 January annually.Granted
Decision PDF
Decision WORD
12 January 201122 June 2013
Carnival AustraliaApplicant seeks to restrict participation in its cruises to persons over 21 years of age, unless accompanied by a parent or guardian.Denied
Decision PDF
Decision WORD
N/AN/A
University of Western SydneyApplicant seeks to offer three ‘end of career transitioning schemes’ to permanent academic staff, where expressions of interest in the schemes would be accepted or rejected on the basis of age.Denied
Decision PDF
N/AN/A
MOSEDG Inc. trading as Youth ConnectApplicant seeks to advertise employment vacancies specifically for young people between 15 and 24 years of age.Denied
Decision PDF
 
N/AN/A
Department of Health and AgeingApplicant seeks to provide assistance in reducing the costs of continence aids to persons between 16 and 65 years of age. Persons over the age of 65 years would only be eligible for assistance if they worked in paid employment for at least 8 hours per week.Denied
Decision PDF
N/AN/A
Plus 40 Pty LtdApplicant seeks to restrict the use of its employment and training services to persons over 40 years of age.Denied
Decision PDF
Decision WORD
N/AN/A