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Federal Discrimination Law: Chapter 2 - The Age Discrimination Act

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Friday 14 December, 2012

Federal Discrimination Law Online

Chapter 2 The Age
Discrimination Act

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The ADA commenced operation on 23 June 2004. At the date of publication there
have been a limited number of cases in which the ADA has been
considered[1]
and there has not yet been a successful claim of unlawful age discrimination.
This chapter therefore focuses on the background to the legislation and its
significant features as well as highlighting some similarities and differences
with other federal unlawful discrimination laws that may be relevant to its
interpretation and
application.[2]

2.1 Introduction
to the ADA

2.1.1 Background

The
ADA is intended to act as a catalyst for attitudinal change, as well as
addressing individual cases of age discrimination. The stated objects of the ADA
are to, amongst other things, raise community awareness that people of all ages
have the same fundamental rights and equality before the law, and eliminate
discrimination on the basis of age as far as is possible in the areas of public
life specified in the
Act.[3]

Another object of the ADA is to ‘respond to demographic change and
Australia’s ageing population by removing barriers to older people
participating in society, particularly in the workforce, and changing negative
stereotypes about older
people’.[4]
The Revised Explanatory Memorandum to the ADA (the Explanatory Memorandum)
comments that:

The proposed new age discrimination Bill will be an integral part of a wide
range of key Government policy priorities to respond to the ageing workforce and
population, and the important social and economic contribution that older and
younger Australians make to the community.

...

Age discrimination is clearly a problem for both younger and older
Australians. In relation to older Australians, in particular, many recent
reports have emphasised the negative consequences of age discrimination on the
wellbeing of older Australians and the broader consequences for the community.
There is also evidence that the ageing of Australia’s population will lead
to an increase in the problem of age discrimination if Government action is not
taken to address this issue. Government action is needed to address the
generally unfounded negative stereotypes that employers and policy makers may
have about both younger and older Australians, which limit their contribution to
the community and the economy.[5]

...

Given the ageing of Australia’s population, the promotion of a mature
age workforce is a priority for the
Government.[6]

It can be noted, however, that the ADA does not just prohibit discrimination
against older Australians on the basis of age. The ADA will, in general, also
protect young people from discrimination on the basis of their age.

The Age Discrimination (Consequential Amendments) Act
2004 (Cth) (‘Consequential Amendments Act’) was enacted along
with the ADA. The Consequential Amendments Act provides a number of amendments
to the ADA and as well as consequential amendments to the Workplace Relations
Act
1996 (Cth) and the HREOC Act.

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2.1.2 Structure
of the ADA

The general scheme and structure of the ADA is
similar to that of the DDA and SDA. The Act sets out definitions of direct and
indirect age discrimination and then sets out the areas of public life in which
such discrimination is unlawful.

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2.1.3 Application
of the ADA

The ADA applies throughout Australia,
including all States and Territories and external Territories of
Australia.[7]
The prohibition on discrimination also applies in relation to discriminatory
acts occurring in Australia but which also involve people, things or events
outside
Australia.[8]
The ADA also applies, to the extent constitutionally permissible:

  • to discrimination against Commonwealth employees and persons seeking to
    become a Commonwealth
    employee;[9]
  • to qualifying bodies operating under Commonwealth laws;
    [10]
  • to acts done under Commonwealth or Territory (excluding ACT and NT) laws by
    Commonwealth or Territory (excluding ACT and NT) governments, administrators or
    public bodies;
    [11]
  • in relation to Australia’s international obligations under ILO 111,
    the ICCPR, the CRC and the International
    Covenant on Economic, Social and Cultural
    Rights
    ,[12]
    as well as other matters in respect of which the Commonwealth has
    power to legislate under s 51(xxix) of the Constitution;
    [13]
  • discrimination by corporations (including foreign corporations within the
    meaning of s 51(xx) of the Constitution);
    [14]
  • discrimination in the course of, or in relation to, banking (other than
    State banking not extending beyond the limits of the State concerned, within the
    meaning of s 51(xiii) of the Constitution);
    [15]
  • discrimination in the course of, or in relation to, insurance (other than
    State insurance not extending beyond the limits of the State concerned, within
    the meaning of s 51(xiv) of the Constitution);
    [16] and
  • discrimination in international or inter-state trade and
    commerce.[17]

The
ADA is intended to bind the executive governments of the Commonwealth and each
of the States (including the ACT and NT) and of Norfolk Island and the
Administrators of the
Territories.[18]

The ADA does not purport to displace or limit the operation of State and
Territory laws capable of operating concurrently with the
ADA.[19] It
deals with any potential inconsistency between federal and State/Territory laws
by providing that where complainants have a choice as to jurisdiction they are
required to elect whether to make their complaint under federal or
State/Territory
legislation.[20]

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2.1.4 Offences

While
the ADA makes age discrimination unlawful in certain circumstances, it is not,
per se, an offence to discriminate on the basis of
age.[21] The
ADA does, however, create specific offences:

  • it is an offence to publish or display an advertisement (or cause or permit
    its publication or display) which indicates an intention to unlawfully
    discriminate on the basis of
    age;[22]
  • it is an offence (‘victimisation’) to intentionally cause
    detriment to a person because that person has made a complaint of discrimination
    or has taken part in discrimination
    proceedings;[23]
    and
  • it is an offence to fail to disclose the source of actuarial or statistical
    data when required to do so by the President of HREOC under s 54(2) of the
    ADA.[24]

Conduct
constituting either of the first two of these offences falls within the
definition of ‘unlawful discrimination’ in s 3 of the HREOC Act.
Accordingly, a complaint in relation to such conduct can be made to HREOC.

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2.2 Age
Discrimination Defined

2.2.1 ‘Age’
defined

‘Age’ is defined in s 5 of the ADA as
including ‘age group’. The ADA provides the following by way of
example: ‘The reference in subsection 26(3) to students above a particular
age includes a reference to students above a particular age group’.

The definition of age does not extend to cover the age which might be imputed
to a
person,[25]
although the definition of direct age discrimination includes less favourable
treatment because of ‘a characteristic that is generally imputed to
persons of the age of the aggrieved
person’.[26]

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2.2.2 Direct discrimination

The definition of direct discrimination is
contained in s 14 of the ADA as follows:

14 Discrimination on the ground of age – direct discrimination

For the purposes of this Act, a person (the discriminator)
discriminates against another person (the aggrieved person) on the
ground of age of the aggrieved person if:

  1. the discriminator treats or proposes to treat the aggrieved person less
    favourably than, in circumstances that are the same or not materially different,
    the discriminator treats or would treat a person of a different age; and
  2. the discriminator does so because of:
    1. the age of the
      aggrieved person; or
    2. a characteristic that appertains generally to persons of the age of the
      aggrieved person; or
    3. a characteristic that is generally imputed to persons of the age of the
      aggrieved person

The extension of the definition of direct discrimination to include less
favourable treatment because of ‘a characteristic that appertains
generally’ to persons of that age or ‘a characteristic that is
generally imputed’ to persons of that age addresses the stereotyping of a
particular group of persons on the basis of actual or implied distinguishing or
idiosyncratic traits.[27] However it
is not necessary to establish that the identified characteristic exists in every
case: it is only necessary to establish that it generally exists or
operates.[28]

In Thompson v Big Bert Pty Ltd t/as Charles
Hotel
,[29]
the applicant alleged that she had been discriminated against on the basis
of her age and sex in her employment as a bar attendant at the
respondent’s hotel where she had worked for approximately six years. In
late 2005, the applicant’s previously regular shift arrangements were
altered and she believed that this was part of a plan to force her departure
from the job as the new shifts would make it more difficult for the applicant to
arrange childcare. The applicant also gave evidence that the owner of the hotel
had been heard remarking that he wanted to replace some of the older staff with
‘young glamours’ and that this amounted to direct and indirect
discrimination on the basis of her age. The applicant was 37 years of age at the
time of the variation to the shift arrangements.

In relation to the direct age discrimination claim, the applicant argued that
the dominant reason for the reduction in her hours was her age, or
alternatively, a characteristic that appertains generally to persons of the
applicant’s age or age group, or a characteristic that is generally
imputed to persons of her age
group.[30] The
characteristic said to appertain generally to, or be generally imputed to,
persons in their late 30s is that ‘they are less attractive and less
glamorous, than persons in a younger age
group’.[31]

Buchanan J dismissed the applicant’s claim. His Honour was satisfied
that the changes in the applicant’s working arrangements were initially
prompted by management’s need to reduce the wages bill for the hotel and
the subsequent deterioration in the relationship between the new manager of the
premises and the applicant that led to the manager removing the applicant from
shifts so that they would not have to work together. One feature of those
changes was to place the applicant from time to time on shifts with a greater
number of customers. This, in his Honour’s view, was ‘inconsistent
with any suggested desire to replace her with “young
glamours,”’[32]
but was entirely consistent with the manager’s desire ‘to be rid of
her presence without terminating the employment
altogether’.[33]

The applicant’s claims of indirect age and sex discrimination were also
dismissed.[34]

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2.2.3 Indirect discrimination

Section 15 of the ADA defines indirect
discrimination as follows:

15 Discrimination on the ground of age – indirect discrimination

  • (1) For the purposes of this Act, a person (the discriminator)
    discriminates against another person (the aggrieved
    person
    ) on the ground of age of the aggrieved person if:

    • (c) the discriminator imposes, or proposes to impose, a condition,
      requirement or practice; and
    • (d) the condition, requirement or practice is not reasonable in the
      circumstances; and
    • (e) the condition, requirement or practice has, or is likely to have, the
      effect of disadvantaging persons of the same age as the aggrieved person.
  • (2) For the purposes of paragraph 1(b), the burden of proving that the
    condition, requirement or practice is reasonable in the circumstances lies on
    the discriminator.

Section 15 is similar in substance to the
indirect discrimination provisions in the SDA.

However, unlike s 7B(2) of the SDA, the ADA does not contain any reference to
the factors to be taken into account when determining whether a condition,
requirement or practice is reasonable in the
circumstances.[35]
‘Reasonableness’ in the context of indirect discrimination has been
the subject of significant judicial consideration in DDA
cases[36] and
this is likely to be relevant in interpreting and applying s 15 of the ADA.

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2.2.4 The ‘dominant reason’ test

The ADA includes a
dominant reason test in determining whether or not an act has been done
‘because of’ the age of a person. Section 16 provides:

16 Act done because of age and for other reason

If an act is done for 2 or more reasons, then, for the purposes of this Act,
the act is taken to be done for the reason of the age of a person only if:

  1. one of the reasons is the age of the person; and
  2. that reason is the dominant reason for the doing of the
    act.

The introduction of a dominant reason test represents a
departure from the position in other federal unlawful discrimination laws. Under
the SDA,[37]
RDA[38] and
DDA,[39] if an
act is done for two or more reasons and a discriminatory ground is one of those
reasons, then the act is done for the discriminatory reason, whether or not it
was the dominant or substantial reason for doing the act. This means that to
substantiate a complaint, a person only needs to show that a ground of
discrimination, for example their race, sex or disability, was a reason for the
less favourable treatment they received.

Practical difficulties in applying a ‘dominant reason’ test,
especially when a court is faced with dual purposes, have been noted in cases
concerning legal professional
privilege.[40]
The ‘dominant reason’ test was also a feature of the RDA until 1990
when it was removed in light of concerns about its practical
application.[41]

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2.2.5 Age discrimination and disability discrimination

The ADA
provides that a reference to discrimination against a person on the ground of
the person’s age is taken not to include a reference to discrimination
against a person on the ground of a disability of the person (within the meaning
of the
DDA).[42]

The Explanatory Memorandum to the ADA states that this provision

deals with the situation where there is an overlap between the operation of
this Act and the DDA. For example, an overlap could occur where a person has a
disability that is or could be related to their age (such as impaired hearing or
mobility). This provision ensures that the Act does not create a second or
alternative avenue for complaints of disability discrimination where such
complaints are properly covered by the DDA. Complaints of age discrimination
that would also be covered by the DDA should be dealt with under the legislative
regime established by that Act.[43]

It can be noted, however, that this section will not necessarily prevent a
person from bringing a claim about both age and disability discrimination. The
Explanatory Memorandum to the ADA states:

this Bill is not designed to limit a person’s rights if they are the
subject of discrimination. If particular circumstances or actions result in a
person being discriminated against both on the ground of age (in a way that is
not related to disability) and also on the ground of disability, then the person
may still initiate a complaint about unlawful discrimination on the grounds of
age and
disability.[44]

This would seem to contemplate a person bringing a complaint about distinct
(although possibly related) acts, some of which are attributable to age
discrimination alone, others which are attributable to disability
discrimination.

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2.2.6 Discrimination against a relative or associate on the basis of
age

Unlike the DDA[45] and
RDA,[46] the
ADA does not prohibit discrimination on the basis of the age of a person’s
relative or associate.

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2.3 Proscribed Areas of Age Discrimination

The areas of public life in
which age discrimination is proscribed are set out in Part 4, Divisions 1
– 3. In general they reflect those proscribed in other federal unlawful
discrimination legislation. Each of these areas is considered in turn.

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2.3.1 Discrimination in employment and occupation

(a) Scope of the prohibition

The prohibition on age discrimination
in employment extends to:

  • Discrimination against employees,[47]commission
    agents[48] and contract
    workers.[49]
    It is unlawful to discriminate in recruitment and offers of employment, as well
    as the actual terms and conditions of employment, access to promotion and
    training and dismissal or any other detriment. These provisions do not extend,
    however, to voluntary work or domestic duties performed in private households,[50]
    and provide an exception where a person cannot perform the inherent requirements
    of the particular position because of their age. [51]
  • Partnerships consisting of more than six partners. It is unlawful to
    discriminate in relation to decisions about who can become a partner, and the
    terms and conditions upon which a partnership is offered. This provision also
    covers denying or limiting access to benefits, expelling a partner or subjecting
    a partner to any other
    detriment.[52]
    It is an exemption to this provision where a person cannot perform the inherent
    requirements of the partnership because of their
    age.[53]
  • Qualifying bodies which provide authorisations or qualifications needed for
    carrying on an occupation, profession or trade. It is unlawful to discriminate
    in the conferring or withdrawing of such authorisation or qualification, and in
    the terms or conditions on which an authorisation or qualification is
    granted.[54]
    It is an exception to this provision where a person cannot perform the inherent
    requirements of the particular profession or occupation because of their
    age.[55]
  • Registered organisations under Schedule 1B to the Workplace Relations Act
    1996
    (Cth). It is unlawful to discriminate by refusing membership to the
    organisation, in the terms and conditions on which an organisation is prepared
    to admit a member or in the access to benefits provided by the
    organisation.[56]
  • Employment agencies. It is unlawful to discriminate by refusing to provide
    services or in the terms or conditions or manner in which their services are
    provided,[57]
    unless the person cannot carry out the inherent requirements of the particular
    employment because of their
    age.[58]

(b) ‘Inherent requirements’ exemption

As noted above in relation
to the particular aspects of employment that are covered by the prohibition of
age discrimination, such discrimination will not be unlawful where a person is
unable to carry out the inherent requirements of the particular position or
employment because of their age.

In determining whether a person is unable to carry out the inherent
requirements of a particular position or employment, the following factors must
be taken into account:

  • the person’s past training, qualifications and experience relevant to
    the particular employment;
  • if the person is already employed by the employer – the person’s
    performance as an employee; and
  • all other relevant factors that it is reasonable to take into
    account.[59]

In
relation to similar provisions in the
DDA[60] and
the then Industrial Relations Act 1988 (Cth), the High Court has held
that the ‘inherent requirements’ of a particular employment means
‘something essential’ to, or an ‘essential element’ of,
a particular
position.[61]
The question of whether something is an inherent requirement of a particular
position is required to be answered with reference to the function which the
employee performs as part of the employer’s undertaking and by reference
to that
organisation.[62]
However employers are not permitted to organise or define their business to
permit discriminatory
conduct.[63]

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2.3.2 Discrimination in areas of public life other than employment

The ADA
also makes age discrimination unlawful in the following areas.

(a) Access to goods, services and facilities[64]

This provision makes it unlawful for someone who provides goods,
services[65]
and facilities to discriminate against a person on the basis of age by refusing
to provide the goods, services or facilities, in the terms or conditions on
which those goods, services or facilities are offered, or in the manner in which
they are offered.

(b) Education[66]

This
provision makes it unlawful for an educational authority to discriminate against
a person on the basis of age in refusing or failing to accept the person’s
application for admission, or in the terms and conditions on which the authority
is prepared to accept the application. It also makes it unlawful to deny or
limit access to benefits provided by the educational institution, to expel a
student or subject a student to any other detriment on the basis of their age.

However this provision provides an exception where an educational institution
is established for persons of particular ages (for example, primary or high
schools).[67]

(c) Accommodation[68]

This provision makes it unlawful to discriminate against a person on the basis of
their age by refusing an application for accommodation,[69]
in the terms and conditions on which accommodation is offered or giving a person
a lower priority in an accommodation waiting list. This provision also makes it
unlawful to deny or limit access to benefits associated with accommodation or to
evict the person or subject the person to any other detriment on the basis of
their age.

However this provision provides an exception where accommodation is provided
by a person who lives on the premises or whose near relative lives on the
premises, where the accommodation is offered to three or less
persons.[70]

(d) Access to premises[71]

This
provision makes it unlawful to discriminate against a person on the basis of age
in allowing or refusing access to
premises[72]
that the public or a section of the public is entitled to enter or use, or on
the terms and conditions on which such access is permitted.

(e) Land[73]

This
provision makes it unlawful to discriminate against a person on the basis of age
in relation to the selling of, or other dealings in land. This includes refusing
to sell land or applying discriminatory terms and conditions on which an
interest in land is offered.

However this provision contains an exception in relation to the giving of
land in a will or as a gift.

(f) Requests for information on which unlawful age discrimination might be
based
[74]

This
provision makes it unlawful to ask a person to provide information if the
information is being requested in connection with or for the purposes of doing
an act which would be unlawful under the ADA, and persons of a different age
would not be asked to provide that information in situations which are the same
or not materially different.

(g) Administration of Commonwealth laws and
programs
[75]

This
provision makes it unlawful for a person who performs functions or exercises
powers under Commonwealth laws or under Commonwealth programs or has any other
responsibility for the administration of those programs or laws, to discriminate
against a person on the basis of age in the exercise of those powers or
responsibilities.

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2.4 Ancillary Liability

The ADA provides for liability for an unlawful
act where a person ‘causes, instructs, induces, aids or permits another
person’ to do that act.[76] The
approach to this section is likely to be assisted by consideration given to
analogous provisions in the SDA[77] and
DDA.[78]

The ADA also makes employers vicariously liable for age discrimination by
employees, unless they can establish that they took reasonable precautions and
exercised due diligence in order to avoid such
discrimination.[79]

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2.5 Victimisation

Victimisation
that results from either actual or threatened detriment is prohibited under s 51
of the ADA and may give rise to civil and/or criminal proceedings. Whilst s 51
is contained within Part 5 of the ADA that deals with offences, an aggrieved
person may bring a civil action for a breach of s 51 because the definition of
‘unlawful discrimination’ in s 3 of the HREOC Act specifically
includes conduct that is an offence under Division 2 of Part 5 of the ADA (which
includes s 51).

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2.6 General
Exemptions Under the ADA

In addition to the exemptions
provided in relation to specific provisions of the ADA (outlined above), the ADA
contains a number of general
exemptions.[80]

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2.6.1 ‘Positive
discrimination’

The ADA provides an exemption
allowing positive measures to be taken (or ‘positive
discrimination’) on the basis of age, as follows:

33 Positive Discrimination

This Part does not make it unlawful for a person to discriminate against
another person, on the ground of the other person’s age, by an act that is
consistent with the purposes of this Act, if:

  1. the act provides a bona fide benefit to a person of a particular age; or

Example 1: This paragraph would cover a hairdresser giving a
discount to a person holding a Seniors Card or a similar card, because giving
the discount is an act that provides a bona fide benefit to older persons.

Example 2: This paragraph would cover the provision to a particular age group
of a scholarship program, competition or similar opportunity to win a prize or
benefit.[81]

  1. the act is intended to meet a need that arises out of the age of the
    persons of a particular age; or

Example: Young people often have a
greater need for welfare services (including information, support and referral)
than other people. This paragraph would therefore cover the provision of welfare
services to young homeless people, because such services are intended to meet a
need arising out of the age of such people.

  1. the act is intended to reduce a disadvantage experienced by persons of a
    particular age.

Example: Older people are often more disadvantaged
by retrenchment than other people. This paragraph would therefore cover the
provision of additional notice entitlements for older workers, because such
entitlements are intended to reduce a disadvantage experienced by older
people.

This section is said to recognise that there are some circumstances in which
age based distinctions are legitimate or justified by other strong policy
interests.[82]
The Explanatory Memorandum to the ADA explains the intention of this provision
as follows:

  1. [s 33(a)] recognises and permits a range of concessions and benefits
    that are provided in good faith to people of a particular age. The most common
    examples are discounts and concessions provided to older people. Such benefits
    are not seeking to give older people an unfair advantage or to exclude or
    disadvantage people of other ages, and have broad social acceptance.
  2. [s 33(b)] recognises and permits measures that seek to address the needs
    of people of particular ages that are different to or more acute than the needs
    of other ages ... While this provision refers to the beneficial act in question
    being ‘intended’ to meet an age-related need, it is not necessary to
    establish that the person actually doing the particular act has a certain
    intention at the time ... [T]he provision is also directed at situations where a
    beneficial program or facility is established by a person or body with the
    intention of meeting an age-related need, but is operated by another person or
    body who simply carries out the policies determined by those who established the
    beneficial program.
  3. [s 33(c)] recognises and permits measures that seek to overcome
    age-related disadvantage. Where a particular age group has been historically
    disadvantaged, or where social circumstances at the time are such that a
    particular age group has less access to certain social benefits or
    opportunities, measures that are aimed at alleviating these problems are allowed
    ... As with the needs-based exemption, the requisite intention to reduce
    disadvantage need not be held by the person actually providing the beneficial
    treatment.

The concept of positive discrimination embodied in this
section of the ADA extends beyond the current understanding of ‘special
measures’ in other federal unlawful discrimination laws. Under the
SDA,[83]
RDA[84] and
DDA,[85] special measures are
essentially confined to those actions taken in order to achieve substantive
equality, or to meet the special needs of a particular group. Under the SDA and
RDA, the taking of special measures ceases to be authorised once the purpose for
which they were implemented has been
achieved.[86] The DDA limits special
measures to those ‘reasonably intended’ to address a special need or
disadvantage.[87]

Section 33 of the ADA is broader in its scope than the ‘special
measures’ provisions found in the SDA, RDA and DDA because it authorises
positive measures to be taken for purposes other than achieving substantive
equality or meeting special needs. It extends to any ‘bona fide
benefit’ (an expression which is not defined). Section 33 of the ADA also
does not contain any temporal limitation such that the measure is no longer
protected once its purposes have been achieved, although this may be implicit in
ss 33(b) and (c) which require reference to be made to an existing need or
disadvantage.

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2.6.2 Exemption for youth wages

The ADA contains an exemption for youth
wages as follows:

25 Exemption for youth wages

This Division does not make it unlawful for a person to discriminate against
another person on the ground of the other person’s age, in relation to
youth wages:

  1. in the arrangements made for the purpose of determining who should be
    offered work; or
  2. in determining who should be offered work; or
  3. in payment, or offer of payment, of remuneration for
    work.

In this section:

youth wages means remuneration for persons who
are under 21.

The Explanatory Memorandum to the ADA states:

Youth wages are a well-recognised feature of workforce relations in
Australia. This exemption will protect the competitive position of young people
in the workforce by allowing employers and the like to continue to recruit and
employ young people and remunerate them on the basis of an appropriate youth
wage.[88]

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2.6.3 Exemption relating to superannuation, insurance and credit

The ADA
provides an exemption in relation to age-based discrimination in the terms and
conditions on which an annuity, insurance policy or membership of a
superannuation scheme is offered or refused, where the discrimination:

  • is based upon actuarial or statistical data on which it is reasonable for
    the discriminator to rely; and
  • is reasonable having regard to the matter of the data and other relevant
    factors; or
  • in a case where no such actuarial or statistic data is available, and cannot
    reasonably be obtained – the discrimination is reasonable having regard to
    any other relevant
    factors.[89]

This
exemption is in the same terms as that contained in s 46 of the DDA. The
application of that provision of the DDA and the meaning to be given to the
expression ‘reasonable’ therein, has been considered in a number of
cases discussed at 5.5.2(a).

The ADA also provides an exemption for age-based discrimination in the terms
and conditions on which credit is provided to a person where the
discrimination:

  • is based upon actuarial or statistical data on which it is reasonable for
    the discriminator to rely; and
  • is reasonable having regard to the matter of the
    data.[90]

Section
54 of the ADA provides for HREOC and its President to have the power to require
the production of actuarial or statistical data where a person has acted in a
way that would, apart from the above exemptions, be unlawful. It is an offence
not to provide the source of any such actuarial or statistical data if required
to do
so.[91]

The ADA also provides an exemption in relation to anything done in direct
compliance with Commonwealth legislation (and regulations or instruments made
under such legislation) which relates to superannuation and for certain public
sector insurance
schemes.[92]
The Age Discrimination Amendment Act 2006 (Cth) expands the s 38
exemption. The exemption now applies to anything done in direct compliance with
a regulation that relates to superannuation, even if the enabling Act does not
relate to
superannuation.[93]

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2.6.4 Exemption for charities, religious and voluntary bodies

Similar to
the exemptions contained in the
SDA[94] and
DDA,[95] the
ADA provides for exemptions for charities, religious and voluntary bodies.

The exemption for ‘charities’ is by way of an exemption for
provisions in charitable instruments that ‘[confer] charitable benefits,
or enables charitable benefits to be conferred, wholly or in part on persons of
a particular age’ and ‘any act done to give effect to such a
provision’.[96]

An act or practice of ‘a body established for religious purposes’
that ‘conforms to the doctrine, tenets or beliefs of that religion’
or ‘is necessary to avoid injury to the religious sensitivities of
adherents of that religion’ is also exempt from the
ADA.[97]

In relation to voluntary bodies, the ADA provides as follows:

36 Voluntary bodies

(1) This part does not make it unlawful for a voluntary body to discriminate
against a person, on the ground of the person’s age, in connection with:

  1. the admission of persons as members of the body; or
  2. the provision of benefits, facilities or services to members of the
    body.

(2) In this section:

registered organisation means an organisation within the
meaning of Schedule 1B of the Workplace Relations Act 1996.

voluntary body means an association or other body (whether
incorporated or unincorporated) the activities of which are not engaged in for
the purposes of making a profit, but does not include:

  1. a registered organisation; or
  2. a body established by a law of the Commonwealth, of a State or of a
    Territory; or
  3. an association that provides grants, loans, credit, or finance to its
    members.

The Explanatory Memorandum states, in relation to section
36:

This clause provides an exemption for age discrimination by voluntary bodies,
where the discrimination relates to admission to membership of the voluntary
body or the provision of benefits, facilities or services to members of the
body. The exemption does not extend to other possible acts of discrimination by
voluntary bodies, such as in employment or in the provision of services to the
public.[98]

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2.6.5 Exemption in relation to health

The ADA provides an exemption in
relation to:

  • Exempted health programs, which are defined as:

a program,
scheme or arrangement that:

  1. relates to health goods or services or medical goods or services; and
  2. is reasonably based on evidence about matters (including safety,
    effectiveness, risks, benefits and health needs) that affect people of a
    particular age in a different way to people of a different age.

The
evidence mentioned in paragraph (b) is the evidence that was reasonably
available at the time the program, scheme or arrangement was
established.[99]

An example of such a program might be a scheme that provides free influenza
vaccines to older people, on the basis of evidence showing that older people are
at greater risk of complications as a result of influenza than are people of
other
ages.[100]

  • Decisions taken by health or medical providers in relation to the provision
    of health or medical goods or services (including anything done in compliance
    with an exempted health program). This provision provides that it will not be
    discriminatory to take a person’s age into account in determining whether
    or not to provide that person with particular health or medical services or
    goods, where that determination is reasonably based on evidence and
    professional knowledge about the ability of persons of that age to benefit from
    those goods or
    services.[101]

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2.6.6 Exemption relating to direct compliance with laws, orders of courts including taxation
legislation and social security legislation

The ADA also
provides an exemption in relation to acts done in direct compliance with certain
federal and State and Territory laws, court orders and industrial awards and
agreements. The section creates two classes of exemption. A general exemption is
given in relation to acts done in direct compliance with those acts or
subsidiary legislative instruments contained in Schedule 1 to the
ADA.[102]
However a two year exemption was provided in relation to acts done in direct
compliance with other Commonwealth acts and subsidiary
instruments.[103]

An exemption is also provided in relation to acts done in direct compliance
with:

  • acts or legislative instruments of a State or
    Territory,[104]
    unless it is an instrument specified in regulations made under the
    ADA;[105]
    and
  • a court
    order,[106]
    an order or award of an industrial relations
    tribunal,[107]
    a certified
    agreement[108]
    or an Australian workplace
    agreement[109]
    within the meaning of the Workplace Relations Act 1996
    (Cth).

The ADA also provides an exemption in relation to
anything done by a person in direct compliance with a taxation law (within the
meaning of the Income Tax Assessment Act 1997
(Cth)),[110]
and various pieces of social security legislation and subsidiary instruments,
including the Community Development Employment Projects Scheme (within the
meaning of the Social Security Act 1991
(Cth)).[111]

The Age Discrimination Amendment Act 2006 (Cth):

  • creates a new exemption for acts done by a person in direct compliance with
    the provision of an Act, regulation or other instrument contained in the new
    Schedule 2;[112]
  • adds Commonwealth Acts, regulations and other instruments to Schedule 1,
    expanding the Acts, regulations and other instruments to which the s 39(1)
    exemption applies;
  • amends s 39, so the exemption now includes acts done in direct compliance
    with a provision of a Commonwealth Act, regulation or other instrument which
    requires a person to form an opinion about the age of another person upon whom a
    document is to be served;[113] and
  • expands the s 41 exemption by:
    • specifying additional Acts, regulations and instruments for which
      the exemption is available;[114] and
    • creating a new exemption for things done ‘in accordance with
      an exempted employment
      program’.[115] ‘Exempted employment program’ is defined as being a program,
      scheme or arrangement that:
    1. (a) is conducted by or on behalf of the Commonwealth Government; and
    2. (b) is primarily intended to:
      1. (i) improve the prospects of participants getting employment; or
      2. (ii) increase workplace participation; and
    3. (c) meets at least one of the following requirements:
      1. (i) it is also intended to meet a need that arises out of the age of persons
        of a particular age, regardless whether the need also arises out of the age of
        persons of a different age;
      2. (ii) it is also intended to reduce a disadvantage experienced by people of a
        particular age, regardless whether the disadvantage is also experienced by
        persons of a different age;
      3. (iii) it requires participants to enter into contracts, and is not made
        available to persons under the age of 18;
      4. (iv) it is made available to persons eligible for a particular Commonwealth
        benefit or allowance;
      5. (v) it is not made available to persons eligible for a particular
        Commonwealth benefit or
        allowance.[116]

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2.6.7 Exemption
in relation to migration and citizenship

    The ADA
    provides an exemption for anything done:
  • in relation to the administration of the Migration Act 1958 (Cth) or
    the Immigration (Guardianship of Children) Act 1946 (Cth) or subsidiary
    instruments;[117]
    or
  • in direct compliance with the Australian Citizenship Act 1948 (Cth)
    or the Immigration (Education) Act 1971
    (Cth).[118]

The exemption in relation to the administration of the Migration
Act 1958
(Cth) or the Immigration (Guardianship of Children) Act 1946
(Cth) or subsidiary instruments is a potentially broad exemption as it appears
to exempt discretionary acts not mandated by those laws or subsidiary
instruments.

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[1]Thompson v Big Bert Pty Ltd t/as Charles Hotel [2007] FCA 1978;
O’Brien v Crouch [2007] FMCA
1976.
[2]
Note that this Chapter aims only to provide a summary of some of the significant
provisions of the ADA. As with the other Chapters in this publication, readers
should not rely on it as being a comprehensive list of all aspects of the ADA
and should refer to the ADA
directly.
[3]
Section
3.
[4]
Section
3(e).
[5]
Revised Explanatory Memorandum, Age Discrimination Bill 2003 (Cth),
5.
[6]
Ibid
10.
[7]
Sections 9(2), 10(5).

[8]
Section
9(3).
[9]
Section
10(3).
[10]
Section
10(4).
[11]
Section
10(6).
[12]
Opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January
1976).
[13]
Section
10(7).
[14]
Section 10(8),
(9).
[15]
Section
10(10)(a).
[16]
Section
10(10)(b).
[17]
Section
10(11).
[18]
Section
13.
[19]Section
12(3).

[20]
Section 12(5).

[21]
Section
49.
[22]
Section 50. Similar provisions are contained in the RDA (s 16), the SDA (s 86)
and the DDA (s
44).
[23]
Section 51. Victimisation is also made an offence under the RDA (s 27(2)), the
SDA (s 94) and the DDA (s
42).
[24]
Section 52. Similar provisions exist in the SDA (s 87) and the DDA (s
107).
[25]
This can be contrasted with the definition of disability under s 4 of the
DDA.
[26]
Section 14.

[27]
See, for example, Commonwealth v Human Rights & Equal Opportunity
Commission
(1993) 46 FCR 191, 207 (Wilcox J), in the context of the
SDA.
[28] (1993) 46 FCR 191, 207.
[29]
[2007] FCA
1978.
[30]
[2007] FCA 1978, [43].
[31] [2007] FCA 1978, [43].
[32] [2007] FCA 1978, [44].
[33]
[2007] FCA 1978, [44].
[34]
[2007] FCA 1978, [46], [50].
[35]
Section 7B of the SDA provides that these matters include, (a) the nature and
extent of the disadvantage resulting from the imposition, or proposed
imposition, of the condition, requirement or practice; (b) the feasibility of
overcoming or mitigating the disadvantage; and (c) whether the disadvantage is
proportionate to the result sought by the person who imposes, or proposes to
impose, the condition, requirement or practice.

[36]
See further
5.2.3(d).
[37]
See s 8 of the
SDA.
[38]
See s 18 of the
RDA.
[39]
See s 10 of the
DDA.
[40]
See, for example, Esso Australian Resources Ltd v Commissioner of
Taxation
(1999) 201 CLR 49; Sparnon v Apand (1996) 68 FCR 322.
HREOC’s concerns about the application of a ‘dominant reason’
test, amongst other things, were raised in its submissions to the Senate Legal
and Constitutional Committee on the Age Discrimination Bill 2003: see
<www.humanrights.gov.au/legal/submissions/age_discrimination.html>.
[41]
See the then President of HREOC, Sir Ronald Wilson’s adverse comments
concerning the dominant purpose test in the RDA in Ardeshirian v Robe River
Iron Associates
(1990) EOC 92-299. In that case, President Wilson stated
that:

The application of the [dominant reason test] presents
considerable difficulty in a case such as this, requiring an evaluation to be
made of the respective weight of the two reasons in contributing to the
decision.
For another example of the application of the
‘dominant purpose’ test as it then was in the RDA, see Surti v
Queensland
[1993] HREOCA 3.

[42]
Section
6.
[43]
See Revised Explanatory Memorandum, Age Discrimination Bill 2003 (Cth), 38. The
operation of this provision is unlikely to disadvantage applicants as
establishing disability discrimination might be expected to be easier than
establishing age discrimination. This is because the DDA does not require an
applicant to prove that disability was the dominant reason for the doing of an
act (s 16 ADA, discussed at 2.2.4 above),
only that it was one of the reasons (see s 10
DDA).
[44]
See Revised Explanatory Memorandum, Age Discrimination Bill 2003 (Cth)
39.
[45]
See ss 15-29 of the
DDA.
[46]
See ss 11-14 of the RDA.

[47]
Section
18.
[48]
Section
19.
[49]
Section
20.
[50]
Section
18(3).
[51]
Sections 18(4), 19(3) and 20(2)
respectively.
[52]
Section 21.

[53]
Section
21(4).
[54]
Section
22.
[55]
Section
22(2).
[56]
Section
23.
[57]
Section
24.
[58]
Section
24(2).
[59]
Section 18(5). Similar tests are provided for in the areas of discrimination
again commission agents (s 19(4)), contract workers (s 20(3)), partnerships (s
21(5)).
[60]
See section 15(4) of the DDA. This section and cases which have considered it in
detail are discussed at
5.3.1(d).
[61]Qantas Airways Ltd v Christie (1998) 193 CLR 280, 294 [34] (Gaudron J
with whom Brennan CJ agreed on this point), 305 [74] (McHugh J), 318 [114]
(Gummow J); X v Commonwealth (1999) 200 CLR
177.
[62]Qantas Airways Ltd v Christie (1998) 193 CLR 280, 284 [1] (Brennan
CJ).
[63]X v Commonwealth (1999) 200 CLR 177, 189-90 [37] (McHugh J); 208 [102]
(Gummow and Hayne JJ (with whom Gleeson CJ and Callinan J
agreed)).
[64]
Section
28.
[65] Note that s 5 defines ‘services’ widely to include superannuation,
banking, insurance, grants, loans, credit or finance, transport, travel,
entertainment, recreation or refreshment, telecommunications, services provided
by a professional or tradesperson or services provided by a government,
government authority or local government
body.
[66]
Section
26.
[67]
Section
26(3).
[68]
Section
29.
[69]
Note that accommodation is defined to include residential or business
accommodation: s
29(4).
[70] Section 29(3). The term ‘near relative’ is defined in s
29(4).
[71]
See s 27 of the
ADA.
[72]
Premises is defined in s 5 of the ADA to include structures (such as buildings,
aircraft, vehicles or vessels), places and parts of premises.

[73]
See s 30 of the
ADA.
[74]
See s 32 of the
ADA.
[75]
See s 31 of the
ADA.
[76]
Section
56.
[77]
See Elliott v Nanda (2001) 111 FCR 79, 292-93 [163], 294-295 [169] in
relation to the meaning of ‘permit’ in the context of s 105 of the
SDA, discussed at
4.10.
[78]
See Cooper v Human Rights & Equal Opportunity Commission (1999) 93
FCR 481, 490 [27], 493-496 [37] – [41], in relation to s 122 of the DDA,
discussed at
5.4.2.
[79]
Section 57. Section 123(2) of the DDA is in the same terms (see 5.4.1). See also
ss 18A and 18E of the RDA (see 3.6) and s 106 of the SDA (see
4.9).
[80] HREOC’s concerns about a number of the exemptions contained in the ADA,
amongst other things, were raised in its submissions to the Senate Legal and
Constitutional Committee on the Age Discrimination Bill 2003: see
<www.humanrights.gov.au/legal/submissions/age_discrimination.html>.
[81]
Example 2 was introduced by the Age Discrimination Amendment Act 2006
(Cth) commencing on 22 June
2006.
[82]
See Revised Explanatory Memorandum, Age Discrimination Bill 2003 (Cth),
50.
[83]
See s 7D of the
SDA.
[84]
See s 8 of the
RDA.
[85]
See s 45 of the
DDA.
[86]
See s 7D(4) of the SDA; Article 1(4) of the International Convention for the
Elimination of all Form of Racial Discrimination
, to which s 8(1) of the RDA
refers and Gerhardy v Brown (1985) 159 CLR 70,
139-40.
[87]
See s 45 of the
DDA.
[88]
Revised Explanatory Memorandum, Age Discrimination Bill 2003 (Cth),
47.
[89]
Section 37(1), (2), (3).

[90]
Section 37(4),
(5).
[91]
Sections 52, 54. Similar provisions exist under the DDA: see s
107.
[92]
Section
38.
[93]
See the new s 38(1)(b).

[94]
See ss 36 (Charities), 37 (Religious bodies), 39 (Voluntary bodies) of the
SDA.
[95]
See s 49 (Charities) of the
DDA.
[96]
Section
34.
[97]
Section
35.
[98]
See Revised Explanatory Memorandum, Age Discrimination Bill 2003 (Cth), 51. In
the context of the similarly-worded provisions of the SDA, it has been held that
the exemption provides protection to voluntary bodies only in their
relationships with their members, not in their relationships with non-members:
see Gardner v All Australian Netball Association Ltd (2003) 197 ALR 28,
and the discussion at
4.7.2.
[99]
Section 42(1),
(2).
[100]
See note to s 42(1) of the
ADA.
[101]
Section
42(3).
[102]
Section 39(1).

[103]
Section 39(2).

[104]
Section
39(4).
[105]
Section
39(5).
[106]
Section
39(7).
[107]
Section
39(8)(a).
[108]
Section
39(8)(b).
[109]
Section
39(8)(c).
[110]
Section
40.
[111]
Section
41.
[112]
See new s
39(1A).
[113]
See new s
39(9).
[114]
See new s 41(2AA) and s
41(6).
[115]
See new s
41A.
[116]
See new s
41A(3).
[117]
Section 43(1). A similarly worded exemption is contained in s 52 of the
DDA.
[118]
Section 43(2).