Submission to the
Senate Legal and Constitutional Legislation Committee
on the Age Discrimination Bill 2003

3 September 2003


1. INTRODUCTION

1.1 The Human Rights and Equal Opportunity Commission (Commission) welcomes the federal government's proposal in the Age Discrimination Bill 2003 ('the Bill') to make discrimination because of age unlawful.

1.2 The concept of age discrimination is not new. All State and Territories have, for some years, made discrimination on the ground of age unlawful through anti-discrimination and equal opportunity laws. [1] Since 1990 the Commission has had the power to inquire into and attempt to conciliate complaints alleging age discrimination in employment and occupation. [2] However, unlike complaints made under the Racial Discrimination Act 1975 (Cth) ('RDA'), Sex Discrimination Act 1984 (Cth) ('SDA') and Disability Discrimination Act 1992 (Cth) ('DDA'), complaints of age discrimination do not currently give rise to any enforceable legal right or remedy. If the Commission finds that an act or practice constitutes age discrimination, action taken by the Commission is limited to preparing a report with recommendations which is provided to the Attorney-General for tabling in federal Parliament. [3] Since 1996, a number of reports under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('HREOC Act') concerning discrimination based on age in employment and occupation have been tabled. [4]

1.3 In May 2000 the Commission produced its report Age Matters: a report on age discrimination ('Age Matters'). This report recommended enactment of comprehensive federal age discrimination legislation and the review and amendment of a number of Commonwealth laws that contained age discriminatory provisions. [5] In reports to Parliament on age discrimination complaints in 1996 and 1997, the then Human Rights Commissioner also recommended the enactment of federal age discrimination legislation. [6]

1.4 The Commission was involved in the consultation process on the development of the federal age discrimination legislation. It participated in all meetings of the Core Consultative Group and working parties. These meetings enabled the Commission to better understand how age as a criterion permeates most areas of public life and the far-reaching effect age discrimination has, both positive and negative, on all sectors of the community. Unlike a person's race or ethnic background, age is an ever-changing personal characteristic and what one may call for from the legislators in one's youth will differ vastly from one's concerns in middle and later age. The balance between these often competing interests is a complex matter and one that the legislators must face when considering all laws that propose to contain age as a criterion. The Commission is mindful of this complexity in making this submission to the Committee. The Commission's response to the Information Paper Containing Proposals for Commonwealth Age Discrimination Legislation, December 2002, can be found at http://www.humanrights.gov.au/legal/age_discrimination_legislation.html

1.5 The Commission considers that the objectives of anti-discrimination legislation must be as beneficial and broad-reaching as possible. The Commission favours consistency of laws and supports a model for age discrimination legislation which is largely based on current federal anti-discrimination laws. The Commission considers that the proposed legislation should not be too prescriptive and should be flexible enough to deal with public concerns that may emerge over time.

1.6 Generally, the Commission supports the content of the Bill. However, the Commission has concerns about certain provisions in the Bill and wishes to focus on these aspects in this submission. These concerns are summarised below and are expanded on in the body of this submission.

  • Clause 16 Dominant reason test
    The Commission opposes the introduction of a dominant reason test into the new legislation and is of the view that the legislation should reflect the same test as contained in current federal anti-discrimination legislation. The Commission is concerned that a dominant reason test will make it harder for people to make successful complaints as an act will only be taken to be done on the basis of the age of a person if their age is the dominant reason for doing an act. It may also have the effect that due to the different test applied, age discrimination may not be considered to be as important as race, sex or disability discrimination and this may undermine the positive benefits contained in the legislation. The Commission also notes that the dominant reason test was removed from the RDA in 1990 as a result of concerns about the practical application of the dominant reason test.

  • Clause 33 Exemption for positive age discrimination
    The Commission supports the inclusion of a provision in the age discrimination legislation that provides for positive age discrimination in order to reduce disadvantage or to meet the special needs of a particular age group. This would be largely consistent with the special measures provisions that currently exist in the RDA, SDA and DDA.

    However, the Commission is of view that clause 33 of the Bill extends the current understanding of a special measures provision and may undermine the objective of the proposed legislation to eliminate age discrimination.

  • Clause 6 Age discrimination and disability discrimination
    While the Commission appreciates the Government's concern that the proposed age discrimination legislation should not create an alternative avenue for complaints of disability discrimination that are properly covered by the DDA, the Commission is not convinced that the proposed legislation needs to include specific provisions to deal with this. The Commission notes that such provisions are not included in any other federal, State or Territory legislation. The Commission is of the view that any potential overlap between grounds of discrimination covered by different federal anti-discrimination laws is appropriately dealt with through the complaints process. The Commission submits that it is essential that the proposed legislation does not prevent people from making a complaint under both the DDA and age discrimination legislation where they believe that their age and disability are two distinct reasons for the alleged less favourable treatment.

  • Clause 39(1) Exemption relating to direct compliance with laws, orders etc including Australian Defence Force
    The Commission does not consider that defence force legislation and its subsidiary instruments listed in Schedule 1 to the Bill should be specifically exempt from the proposed law, except so far as it relates to the minimum age for enlistment and cadet schemes. As an employer, the Commission considers that the inherent requirements provisions should be the appropriate exception for any of the current age based criterion used by the defence forces including those for entry for particular positions, transfer, promotion and retirement.

1.7 The Commission also wishes to make a brief comment concerning other provisions of the Bill. These provisions are as follows.

  • Part 3 - Extension of concept of age discrimination to include relatives and associates

  • Clauses 14 and 15 Definition of direct and indirect discrimination

  • Clause 25 Exemption for youth wages

  • Clause 43 Exemption in relation to migration legislation

2. DOMINANT REASON

2.1 Clause 16 of the Bill provides:

"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:

(a) one of the reasons is the age of the person; and

(b) that reason is the dominant reason for the doing of the act."

2.2 It is relevant to note firstly that the content of clause 16 has appeared for the first time in the Bill. The Commission understands that it did not form any part of discussions within the Core Consultative Group nor was it raised in the Attorney-General's Information Paper: Proposals for Commonwealth Age Discrimination Legislation.

2.3 As the Explanatory Memorandum to the Bill notes, the equivalent provisions to clause 16 in all other federal anti-discrimination legislation [7] provide that if an act is done for two or more reasons and one of the reasons is because of a prohibited ground (such as disability, sex or race) then the act will be taken to be done on the basis of the prohibited ground. These provisions specifically state that the prohibited ground does not need to be the dominant or substantial reason for doing the act.

2.4 However, until 1990 the RDA required that the grounds included in that Act had to be the dominant reason for the doing of the discriminatory act. Amendments made by the Law and Justice Legislation Amendment Act 1990 (Cth) [8] introduced the current test into s18 of the RDA. While the Explanatory Memorandum to that Bill was silent as to the reasons for the change to s18, the Hansard debates reveal some of the consideration given to this amendment.

2.5 For example, the Hon. Daryl Melham MP was of the view that the amendment would be a "major improvement" on the operation of the Act and would significantly tighten its effect. [9] The Opposition at the time did not oppose the amendments contained in the Bill, [10] but raised a number of concerns of a "practical nature". [11] The Hon. Andrew Peacock MP noted in relation to the new s18 of the RDA that there was "merit in having uniformity between the provisions of the Racial Discrimination Act and the Sex Discrimination Act" [12] and that it would be desirable to have uniformity between State and federal legislation in the area of equal opportunity. [13] In addition, he referred to a decision of the then President of HREOC in the case of Ardeshirian v Robe River Iron Associates [14] as an example of a case in which concerns were expressed about the dominant purpose test then contained in the RDA. [15] The President noted [16] that the application of s18 presented "considerable difficulty… requiring an evaluation to be made of the respective weight of the two reasons in contributing to the decision". [17]

2.6 Clause 16 of the Bill, therefore, takes a very different approach to that taken in other federal legislation. In addition, none of the Australian State and Territory anti-discrimination legislation has a dominant reason test. Five jurisdictions [18] adopt the same test as found in the RDA, SDA and DDA. The remaining three jurisdictions [19] require that the prescribed ground is a substantial reason for the discrimination. Case law arising from those jurisdictions with this test indicates that "substantial" means "of substance or weight as opposed to of little moment, insignificant or negligible" [20] and:

"is not intended to denote a ground which predominates over other grounds. The premise for the operation of s 6(2) [of the Equal Opportunity Act 1984 (SA)] is that there was more than one reason for the conduct and at least the discriminatory reason is of some substance". [21]

2.7 The Commission considers that while uniformity of anti-discrimination laws across the Australian jurisdictions would be the ideal, that, at the very least, uniformity between federal anti-discrimination laws would give appropriate recognition to the human rights standards that such laws are based upon and would be highly beneficial in terms of requiring the same standards of behaviour in certain areas of public life.

2.8 The Commission is of the view that the dominant reason test would make it more difficult for a person to make a successful complaint of age discrimination as that person would need to show that their age was not just a reason or a substantial reason for the less favourable treatment, but that it was the dominant reason for the action. This test could also invite litigation focusing on the interpretation of the term "dominant reason' and whether a reason was a dominant or a secondary one. The Commission also notes that where the evidence in a case may establish that a prohibited ground is only one of two or more reasons for a particular act, the fact that the prohibited ground is not necessarily the dominant or substantial reason has been acknowledged in some cases decided under current federal anti-discrimination legislation in the award of damages made by the decision maker. [22]

2.9 The Commission also notes the statement in the Explanatory Memorandum that "…the primary solution to most aspects of age discrimination is based on education and attitudinal change. In doing so, it is critical that the legislation not establish barriers to such positive developments, for example, by restricting employment opportunities for older Australians by imposing unnecessary costs and inflexibility on employers acting in good faith."

2.10 It appears that the Explanatory Memorandum is suggesting that the dominant reason test will enhance the employment opportunities of older workers. The Commission, in its administration of the RDA, SDA and DDA, is not aware of any evidence that the 'one or more reasons' test contained in those pieces of legislation has led to a restriction of employment opportunities for people for whom the legislation provides protection against discrimination and it is not clear why the ground of age would be any different. Rather than reducing discrimination against older people in the workforce, the adoption of the dominant reason test could have the effect of restricting the ability of a person to assert their right to be treated on a non-discriminatory basis under the new legislation and would potentially undermine the positive benefits that the legislation otherwise introduces. The Commission also considers that the concerns in relation to imposing 'unnecessary costs and inflexibility' on employers would seem to be addressed by the broad range of exemptions and exceptions contained in the Bill.

2.11 The Commission agrees that educational and attitudinal changes are important benefits that will flow from having enforceable federal age discrimination legislation. However, adoption of the stricter dominant reason test may undermine these important objectives if in fact the test has the effect of conveying a message that issues of age discrimination are not considered as important as issues of race, sex or disability discrimination. The Commission also considers that this test will undermine one of the primary objects of the Bill [23] which is to eliminate, as far as possible, discrimination against people on the ground of age in specified areas of public life. The practical effect of this test will be that service providers and employers will be able to make distinctions on the basis of age as long as the age of the person is not the dominant reason for the less favourable treatment.

2.12 In light of the matters outlined above, the Commission opposes the introduction of a dominant reason test into the new legislation. The Commission particularly notes that the test was removed from the RDA some years ago, it will be the only piece of anti-discrimination legislation in Australia that contains such a test, and it will undermine the important objectives of the legislation. In the Commission's view, the legislation should reflect the same test as contained in current federal anti-discrimination legislation.

3. EXEMPTION FOR POSITIVE AGE DISCRIMINATION

3.1 Clause 33 of the Bill provides:

"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:

(a) the act provides a bona fide benefit to persons of a particular age; or

Example: 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.

(b) the act is intended to meet a need that arises out of the age of 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.

(c) the act is intended to reduce a disadvantage experienced by people of a particular age.

Example: Older people are often more disadvantaged by retrenchment than are 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."

3.2 The Commission supports the inclusion of a provision in the Bill that provides for positive age discrimination in order to reduce disadvantage or to meet the special needs of a particular age group. The Commission considers that this should be largely consistent with the special measures provisions that currently exist in the RDA, [24] SDA [25] and DDA. [26]

3.3 The Commission notes, however, that clause 33 extends the concept beyond the provision in the other federal anti-discrimination statutes, in which the primary purposes of the special measures provisions is the achievement of substantive equality. The relevant provisions in the RDA and SDA also provide that the taking of special measures is not authorised once the purpose for which they were implemented is achieved. It is also noted that the DDA in s 45 requires that an act be 'reasonably intended' to address a special need or disadvantage, as opposed to clause 33 which has no requirement of reasonableness.

3.4 The Commission is of the view that any extension of the current understanding of a special measures provision may undermine the objective of the proposed legislation to eliminate age discrimination. The Commission notes that what might be considered to be a 'bona fide benefit' to a person of a particular age could constitute less favourable treatment in relation to a person who is not provided with the benefit because they are not of that age. However, the operation of clause 33 would mean that this would not constitute unlawful discrimination under the Bill. If clause 33 remains in its current form, it is suggested that consideration be given to some form of limitation being included, such as the reasonableness of the measure.

4. AGE DISCRIMINATION AND DISABILITY DISCRIMINATION

4.1 Clause 6 of the Bill provides:

"For the purposes of this Act, 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 Disability Discrimination Act 1992)."

4.2 The Commission appreciates the Government's concern expressed in the Explanatory Memorandum that the Bill should not create an alternative avenue for people whose complaints may not be successful under the DDA due to the existence of Standards [27] or the defence of unjustifiable hardship and acknowledges the statement in the Explanatory Memorandum that "the Bill is not designed to limit a person's rights if they are the subject of discrimination'. The Commission, however, is not convinced that the proposed legislation needs to include specific provisions to deal with this. The Commission notes that such provisions are not included in any other federal, State or Territory legislation

4.3 The Commission is of the opinion that any potential overlap between grounds of discrimination covered by federal anti-discrimination law can be dealt with through the Commission's complaint assessment process and through the termination grounds which are found in s 46PH of the HREOC Act. [28]

4.4 Section 46P of the HREOC Act outlines the threshold jurisdictional issues that need to be satisfied for correspondence to be accepted as a complaint under the Commonwealth anti-discrimination law administered by the Commission. This includes a requirement that the correspondence alleges unlawful discrimination. [29] If correspondence received by the Commission alleged disability discrimination and did not allege age discrimination, or express a sense of grievance based on age, then it would be handled as a complaint alleging a breach of the DDA only and would not be handled as a complaint of unlawful age discrimination.

4.5 However, where the requirements of section 46P are met and the person has evinced a complaint of unlawful age discrimination, issues relating to whether the less favourable treatment is because of a person's age or his or her disability would be dealt with in a practical manner through the Commission's investigation processes and the President's power to terminate complaints.

4.6 For example, if a person made a complaint alleging age discrimination, but the complaint was in fact only about their disability, it would be likely to be difficult for that person to successfully make out a complaint of direct age discrimination. In such a case, difficulties would arise in the complainant being able to establish a sufficient connection between his or her age and the alleged less favourable treatment and, in these circumstances, the President has the power to terminate an inquiry into a complaint on the basis that he is satisfied that it is lacking in substance. [30] Difficulties could also arise in relation to making out a complaint of indirect age discrimination. Firstly, a complainant would need to establish that the requirement or condition disadvantaged people of the complainant's age group and, secondly, issues of reasonableness would also need to be considered. The factors considered in assessing the reasonableness of the requirement or condition would be similar to those examined in assessing issues of unjustifiable hardship under the DDA and could include considerations of Standards under the DDA.

4.7 In relation to the issue of potential overlap between the grounds of disability and age discrimination, the Commission notes that people's experiences of discrimination are often multi-dimensional and quite complex. For example, a person might complain to the Commission because they believe they were selected for redundancy on the basis of both their age and their disability or a person may complain that their race and sex were reasons why they were refused employment. The Commission regularly receives complaints alleging multiple grounds of discrimination under the different federal anti-discrimination legislation and is able to effectively deal with these matters through the current legislative scheme and existing complaint handling processes.

4.8 In the Commission's view, it is important that the various pieces of federal anti-discrimination legislation can operate together in a way which enables complaints to be considered as a whole and any overlap between the various grounds of discrimination to be fully and properly considered.

5. EXEMPTION RELATING TO DIRECT COMPLIANCE WITH LAWS, ORDERS OF COURTS ETC

5.1 Clause 39 of the Bill exempts in a number of ways certain federal and State and Territory laws, court orders, and industrial awards and agreements.

5.2 Clause 39 of the Bill provides a general exemption as follows:

Acts, regulations and instruments mentioned in Schedule 1

(1) This Part does not make unlawful anything done by a person in direct compliance with:

(a) an Act mentioned in Schedule 1; or
(b) a regulation or any other instrument mentioned in Schedule 1.

Other Acts or regulations - 2 year exemption period

(2) This Part does not make unlawful anything done by a person, in direct compliance with any other Commonwealth Act or regulation, during the period:

(a) beginning on the day on which this Act commences; and
(b) ending 2 years after that day.

(3) To avoid doubt, subsection (2) does not affect the operation of any other provision in this Division.

State and Territory Acts, regulations and instruments

(4) This Part does not make unlawful anything done by a person in direct compliance with:

(a) an Act of a State or Territory; or
(b) a regulation or any other instrument made under an Act of a State or Territory.

(5) Subsection (4) does not apply in relation to an Act, regulation or other instrument of a State or Territory if the Act, regulation or instrument is specified in regulations made for the purposes of this subsection.

(6) To avoid doubt, section 49A of the Acts Interpretation Act 1901 does not prevent a regulation made for the purposes of subsection (5) from specifying an Act, regulation or instrument as in force at a particular time or as in force from time to time.

Court orders

(7) This Part does not make unlawful anything done by a person in direct compliance with an order of a court.

Workplace relations

(8) This Part does not make unlawful anything done by a person in direct compliance with any of the following:

(a) an order or award of a court or tribunal having power to fix minimum wages;
(b) a certified agreement (within the meaning of the Workplace Relations Act 1996);
(c) an Australian workplace agreement (within the meaning of the Workplace Relations Act 1996).

5.3 General response

5.3.1 The Commission appreciates that specific exemptions may be appropriate for certain Commonwealth legislation (such as that set out in clause 41 of the Bill) that implements major social policy programs and where that legislation is subject to scrutiny and review by the federal Parliament on a regular basis.

5.3.2 The Commission notes that the exemptions in clause 39(1) apply only to those acts done in direct compliance with the legislation listed in Schedule 1 to the Bill. [31] The Commission makes specific comments about certain legislation contained in Schedule 1 at paragraph 5.4 below.

5.3.3 The Commission also notes the proposal in clause 39(2) to exempt acts done in direct compliance with Commonwealth laws not otherwise included in Schedule 1 to the Bill. The Commission supports the approach taken in the Bill that these exemptions be reviewed two years after the commencement of the Bill. Such a period of review will allow sufficient time for Commonwealth laws to become compliant with the age discrimination legislation or seek permanent exemption from the federal Parliament.

5.3.4 In relation to the exemption in clause 39(4) concerning State and Territory Acts, regulations and instruments, the Commission notes the potential complexity of the interaction between the proposed federal age discrimination legislation, general State and Territory laws which may contain age based criteria (for example laws in relation to liquor licensing, tobacco, driving licences etc) and State and Territory anti-discrimination laws, most of which exempt any act that is done in compliance with the relevant State or Territory legislation. In light of this, the Commission does not oppose the proposal that the age discrimination legislation include a general exemption for acts done in order to comply with State or Territory laws, but welcomes the inclusion of s 39(5) which enables the federal Parliament to prescribe exceptions to the exemption should it consider it appropriate to do so given the reach that State and Territory laws have on public life.

5.4 Defence Act legislation

5.4.1 As outlined in the Introduction above, since 1990 the Commission has had the legislative function of inquiring into and attempting to conciliate complaints alleging age discrimination in employment and occupation. Of those matters that have led to a report being tabled in the federal Parliament containing a finding that an act or practice constitutes discrimination, [32] a number have involved the Australian Defence Force (ADF) as the respondent [33] and, in some cases, have led to proceedings in the Federal Court. [34]

5.4.2 Schedule 1 to the Bill also includes Australian Defence Force (ADF) legislation as well as Defence Instructions in relation to the Navy, Army and Air Force. However, the legislation and subsidiary instruments relating to the ADF provide the basis for employment of its members. There are varying age requirements in each of the different arms of the ADF in relation to matters such as recruitment to certain positions, transfers and promotion. Ages for compulsory retirement also vary depending on factors such as rank and position.

5.4.3 The Commission is of the view that the legislation relating to the ADF is in a very different position to that of other Commonwealth laws and programs, such as social security legislation, which deal primarily with the provision of, and access to, public services. The Commission submits that, except so far as it relates to minimum age for enlistment and cadet schemes, the ADF should be subject to the same provisions in the proposed Bill as other employers, including having available to it the inherent requirement defence which would ensure that the use of age as an arbitrary proxy for ability would be avoided.

5.4.4 The Commission is therefore opposed to the application of any exemption (permanent or temporary) to defence force legislation and subsidiary instruments and reaffirms the recommendations it made concerning defence force legislation in the Age Matters report [35] as follows:

  • All age-based requirements for recruitment into the defence forces should be abolished and alternative non-discriminatory tests of applicant suitability should be substituted.
  • All defence force regulations that specify age limits for positions and/or training or promotional opportunities should be amended to ensure that selection is based on the inherent requirements of the position or opportunity rather than age.
  • Defence force legislation and regulations that specify compulsory retirement should be amended to abolish age based retirement.

6. Definitions of direct and indirect discrimination

6.1 The Commission welcomes the inclusion of definitions of both direct and indirect age discrimination in clauses 14 and 15 of the Bill. Direct and indirect discrimination are key concepts and broadly accepted legal principles in anti-discrimination law. This approach to defining discrimination is consistent with the approach taken in federal, State and Territory anti-discrimination law. Defining age discrimination in this way will provide individuals and organisations with clarity regarding their rights and responsibilities under the legislation.

6.2 The Commission also welcomes the way in which indirect age discrimination has been defined in clause 15 of the Bill. Clause 15 generally takes the form of the indirect discrimination provisions in the SDA [36] which are both simpler to understand and apply and broader in their coverage than other definitions in federal anti-discrimination law. Clause 15(2) of the Bill, like s 7C of the SDA, also specifies that the burden of proof in establishing that a condition, requirement or practice is reasonable in the circumstances lies with the alleged discriminator. As the Commission noted in its response to the Government's Information Paper, [37] placing the onus of proof on the respondent is logical as information concerning the reasonableness of the particular condition, requirement or practice would generally be in the possession of the respondent.

6.3 However, the Commission notes that, unlike s 7B(2) of the SDA, the Bill does not contain any reference to the matters to be taken into account when determining whether a condition, requirement or practice is reasonable in the circumstances. [38] The Commission is of the view that the inclusion of a similar provision to s7B(2) of the SDA in the Bill will not only provide important guidance for parties to a complaint, but also assist the Commission in the administration of the legislation.

7. Extension of concept of age discrimination to include relatives and associates

7.1 During discussions of the Core Consultative Group, the issue of whether discrimination of the ground of age should be extended to cover discrimination on the basis of a person's relative or associate was raised.

7.2 Under the DDA it is unlawful to discriminate against an associate of a person with a disability in certain areas of public life, for example employment, education, access to premises and the provision of goods, services and facilities. [39] The RDA also contains provisions that make it unlawful for a person to discriminate against another person in particular areas of public life because of the race, colour or national or ethnic origin of a relative or associate. [40] Accordingly, the prohibition of discrimination against relatives and associates has been an aspect of federal anti-discrimination law since 1975 and such provisions were included in the most recent piece of federal anti-discrimination law, being the DDA. In the Commission's experience, the inclusion of protections in the legislation for associates and relatives has been largely uncontroversial and has not resulted in a large number of complaints being made on this basis.

7.3 In these circumstances, the Commission is of the view that discrimination on the ground of age in clause 14 of the Bill should be extended to cover discrimination on the basis of the age of a person's relative or associate.

8. Exemption for youth wages

8.1 The Commission does not support the inclusion of a specific, permanent exemption in clause 25 of the Bill in relation to youth wages. The Commission considers that this issue can be dealt with through an appropriate special measures provision or exemptions in relation to acts done in direct compliance with an award, industrial agreement or Commonwealth legislation.

8.2 The Discrimination (Employment and Occupation) Convention 1958 (ILO 111), which is scheduled to the HREOC Act, provides for special measures in the area of employment. It states:

1. Special measures of protection or assistance provided for in other Conventions or Recommendations adopted by the International Labour Conference shall not be deemed to be discrimination.

2. Any member may, after consultation with representative employers' and workers' organisations, where such exist, determine that other special measures designed to meet the particular requirements of persons who, for reasons such as sex, age, disablement, family responsibilities or social or cultural status, are recognised to require special protection or assistance, shall not be deemed to be discriminatory.

8.3 Special measure provisions are preferred because they are more flexible and targeted than specific fixed exemptions. They ensure that only those programs and policies that are designed and targeted to address disadvantage by a particular group are exempt from the operation of the legislation. Once the disadvantage that the program or policy has been set up to address has been remedied, then the program or policy would no longer be a special measure and exempt from the operation of the age discrimination legislation. In Age Matters, the Commission recommended that a number of special measures aimed at mature age-job seekers and older workers either be continued or implemented.

8.4 It is also noted that the proposed Bill provides the Commission with the power to grant exemptions. Organisations and departments delivering a program which they consider to be a special measure could apply to the Commission to have it exempt from the operation of age discrimination legislation. [41]

8.5 The Commission notes that junior rates of pay are usually contained in industrial awards and agreements and any exemption in relation to acts done in direct compliance with awards or industrial agreements would cover this issue.

8.6 In Age Matters, the Commission also examined in some detail the issue of youth wages. It found that:

"Determining the acceptability or otherwise of junior rates has been difficult because of the lack of unequivocal evidence as to the effect their abolition would have on the youth labour market overall. If there is no significant detrimental effect, the differences cannot be justified. The evidence, however, is inconclusive." [42]

8.7 The Commission recommended that the federal government should:

(a) encourage and work with industrial parties to develop and trial a full range of employment, training and wage options for young people;

(b) amend the Workplace Relations Act 1996 to require the Australian Industrial Relations Commission to undertake a further review of junior rates and feasible non-discriminatory alternatives within a reasonable period; and

(c) require the Australian Industrial Relations Commission in its considerations of junior rates on a case by case basis to

- consult widely with young people and their representative organisations

- base its assessment on whether junior rates are proportional to the objective of increasing young people's access to full-time employment and are the most effective and least discriminatory means to this end. [43]

8.8 The Commission considers that further consultation and research is needed on the issue of youth wages, and whether there is a causal relationship between youth wages and increased levels of employment for young people. In the meantime, it is the Commission's view that these issues are better dealt with through positive targeted measures rather than the introduction of a blanket exemption.

9. Exemption in relation to Migration Act

9.1 The Commission notes that clause 43 of the Bill provides an exemption for "anything done by a person in relation to the administration of the Migration Act 1958 (Cth) ('Migration Act'), Immigration (Guardianship of Children) Act 1946, and their regulations". To the extent that that proposal seeks to exempt not only acts done in direct compliance with a law but also discretionary acts not mandated by law, then the Commission expressly disagrees with that aspect of the proposal. Inclusion of discretionary acts in the exemption would be inconsistent with the general thrust of other provisions in the Bill in relation to Commonwealth laws and programs. It would have the potential to remove all action taken under the Migration Act and its regulations, that is, both those acts done in order to comply with a law and those discretionary acts done to administer the law. In any event, discretionary acts could be permitted if they met the tests set out in other exceptions, such as the proposed exception for positive discrimination.


1. Anti-Discrimination Act 1977 (NSW) Part 4G; Equal Opportunity Act 1984 (SA) s 85A; Equal Opportunity Act 1984 (WA) Part IVB; Discrimination Act 1991 (ACT) s 7(1)(ib); Equal Opportunity Act 1995 (Vic) s 6(a); Anti-Discrimination Act 1998 (Tas) s 16(b); Anti-Discrimination Act 1991 (QLD) s 7(1)(f); Anti-Discrimination Act 1992 (NT) s 19(1)(d).

2. Section 4(a)(i) of the Human Rights and Equal Opportunity Commission Regulations 1989.

3. HREOC Act, ss 30 - 35.

4. Report No.1- Compulsory age retirement (1996); Report No.2 - Redundancy arrangements and age discrimination (1997); Report No.4 - Age discrimination in trade union membership (1997); Report No.8 - Age discrimination in the Australian Defence Force (2000); Report No.11 - Discrimination on the ground of age (2002); Report No.14 - Report of an inquiry into a complaint by Mr Andrew Hamilton of age discrimination in the Australian Defence Force.

5. At pp 107-119.

6. Report No.1 - Compulsory Retirement Age (1996); Report No.2 - Redundancy arrangements and age discrimination (1997).

7. Section 18 RDA, s 8 SDA and s 10 DDA.

8. This Act came into operation on 22 December 1990.

9. Commonwealth, Parliamentary Debates, House of Representatives, 12 November 1990, 3768 (Mr Melham, Member for Banks).

10. Commonwealth, Parliamentary Debates, House of Representatives, 12 November 1990, 3764 (Mr Peacock, Member for Kooyong).

11. Ibid.

12. Commonwealth, Parliamentary Debates, House of Representatives, 12 November 1990, 3767 (Mr Peacock, Member for Kooyong).

13. Ibid.

14. (1990) EOC 92-299.

15. Commonwealth, Parliamentary Debates, House of Representatives, 12 November 1990, 3766 (Mr Peacock, Member for Kooyong).

16. At 78,032.

17. It is also noted that the term 'dominant' is used in different contexts, such as the area of legal professional privilege. Its meaning and the practical difficulties in applying a dominant purpose test, especially when a court is faced with dual purposes, has led to much discussion in the case law. See, for example, Esso Australian Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49; Sparnon v Apand (1996) 68 FCR 322; 138 ALR 735.

18. Section 4A Anti-Discrimination Act 1977 (NSW); s 5 Equal Opportunity Act 1984 (WA); s 14(3)(a) Anti-Discrimination Act 1998 (Tas); s 4(3) Discrimination Act 1991 (ACT); Anti-Discrimination Act 1992 (NT).

19. Section 8(2) Equal Opportunity Act 1995 (Vic); s 10(4) Anti-Discrimination Act 1991 (Qld); s 6(2) Equal Opportunity Act 1984 (SA).

20. Oyekanmi v National Forge Operations Pty Ltd and Anor (1996) 92-797 at 78,896; Foley v Shop, Distributive and Allied Employees' Association (1999) VCAT, No. 62 of 1998 at 8.

21. Yfantidis v Jones and Flinders Medical Centre (1993) 61 SASR 458, per Debelle J at [47].

22. See, for example, comments made by Commissioner McEvoy in Wu v Cohen & Express Embroidery Pty Ltd (unreported) HREOC, 10 October 2000 at p 15.

23. See clause 3(a) of the Bill.

24. RDA s 8.

25. SDA s 7D.

26. DDA s 45.

27. See s 31 of the DDA.

28. Grounds of termination as set out in s 46PH of the HREOC Act include that the President is satisfied that: the alleged discrimination is not unlawful discrimination; the complaint was trivial, vexatious, misconceived or lacking in substance; the subject matter of the complaint has been adequately dealt with; some other more appropriate remedy is available; or that the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority.

29. It is noted that Schedule 1 of the Age Discrimination (Consequential Provisions) Bill 2003 provides for an amendment to the HREOC Act to include in the definition of 'unlawful discrimination' in s 3(1) of that Act those acts, omissions or practices that are unlawful under Part 4 of the Age Discrimination Act 2003.

30. Pursuant to s 46PH(1)(c) of the HREOC Act.

31. It is also noted that some of the legislation listed in Schedule 1 to the Bill appears not to have formed part of the discussions of the Core Consultative Group and Working Groups.

32. See note 4 above.

33. Report No.8 - Age discrimination in the Australian Defence Force (2000) and Report No.14 - Report of an inquiry into a complaint by Mr Andrew Hamilton of age discrimination in the Australian Defence Force.

34. See, for example, Commonwealth v Bradley (1999) 95 FCR 218 and Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Hamilton (2001) 180 ALR 635.

35. Recommendation 4 at p 110.

36. See ss 5(2), 6(2) and 7(2) of the SDA.

37. At paragraph 2.1 of the response to the Information Paper.

38. Section 7B 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.

39. See ss 15 to 29 of the DDA.

40. See ss 11,12, 13 and 15 of the RDA.

41. Examples of some of the exemption applications considered to date by the Commission under the SDA and DDA can be found at the following websites: http://www.humanrights.gov.au/legal/sda_exemption.html and http://www.humanrights.gov.au/disability_rights/exemptions/exemptions.html.

42. Page 114.

43. Page 115-116

Last updated 9 September 2003.