Age discrimination

Response To Human Rights And Equal Opportunity Commission Age Matters:
A Discussion Paper On Age Discrimination September 1999
Council On The Ageing (Australia): 1999 International Year Of Older Persons

INTRODUCTION

The theme for the United Nations International Year of Older Persons is a society for all ages. The fundamental task to achieve this goal is the abolition of discrimination on the basis of age. One of the core aims of the Council on the Ageing (COTA) is to ensure that older Australians have the maximum opportunities for social and economic participation. Elimination of age discrimination is central to this goal.

In the years ahead with Australia's ageing population, there will be an ongoing debate about the distribution of public resources and economic opportunities between generations. Age discrimination legislation will play a significant role in asserting an ongoing commitment by the Commonwealth to decision-making that is free from age-related bias in this arena.

At the present time there is considerable evidence that age discrimination is an entrenched practice and attitude in Australian society. This is most evident in recent work that COTA has been undertaking with mature age unemployed people. These people believe that age discrimination is the most significant factor preventing them from obtaining paid employment. Many also assert that their age is the primary reason that they have lost jobs. However, age discrimination not only relates to employment practices but to many other areas of the society and the economy. HREOC's report Age Matters: a discussion paper on age discrimination provides an excellent overview of the various manifestations of age discrimination.

At the same time there is a wide range of long-standing discriminatory laws which reflect certain expectations about physical and mental capacities of people at certain ages. The compulsory retirement age of 55 for people in the armed services below the rank of major general is a case in point. Social norms have also resulted in many discriminatory laws. For example, the expected retirement at 65 of employees means that there is limited or no workers' compensation coverage for people 65 and over in the Commonwealth and most of the States.

However, many of these regulations under various federal Acts are now outdated and do not reflect the rapid rise in life expectancy in recent years, the greatly improved health status of mature age people and the changing nature of many areas of employment. In addition, mature age people have a different set of expectations of later life and retirement than people a generation ago.

COTA welcomes the opportunity presented by the HREOC report to lend its support to the case for a comprehensive age discrimination Act to complement those in existence for disability, race and sex discrimination.

A NEW FEDERAL AGE DISCRIMINATION ACT

Legislation needed to lead change in attitudes and behaviour

Comprehensive age discrimination legislation is necessary to provide sufficient potency to the reform of retrenched social attitudes and behaviours. It has the following potential advantages over the other possible mechanisms for eliminating age discrimination discussed on page 59 of the report:

• It is a clear statement of policy at the federal level and as such has a role in asserting the Commonwealth's leadership in eliminating age discrimination.
  
  
• Its effects are ongoing rather than ad hoc as would be the case in a one-off education campaign.
  
  
• It provides an avenue of complaint and recompense for individuals affected by age discrimination .
  
  
• It acts as a springboard for ongoing education in the community and publicity about the negative consequences of age discrimination.
  
  
• There are many areas of policy and practice within the Commonwealth itself which are age discriminatory. Commonwealth legislation could require the Commonwealth and all its arms to comply with the legislation.
  
  
• It can play a part in fostering attitudes that enable individuals to make decisions and choices that are free from age bias.

Education essential

COTA believes that, by itself, age discrimination legislation will not be enough to transform largely unconscious attitudes and beliefs which are often translated into behaviours and decisions that have a negative effect on people - especially older people in our community who are the focus of COTA's interests and the core of our constituency.

COTA believes that it is essential for age discrimination to be accompanied by a community education campaign that will reinforce the intention of the legislation but which focusses on the positive aspects of behaving and making decisions in ways that are free from age bias. There are many important messages that need to be promulgated but the following are critical:

• There are real benefits to employers by maintaining a balance of ages in the workforce in terms of productivity.
  
  
• Australia's ageing population means that a higher proportion of the community's wealth is locked up in the older population and that the best use of these assets will require a positive outlook on older people as a market for goods and services.
  
  
• Social cohesiveness and harmony will be enhanced by a positive outlook on ageing and attitudes that are free from age bias.

It is likely to be the case that the Age Discrimination Act will not work without such an education campaign. The Act will only serve to make discriminatory practices more covert and fail to make a dent on the underlying causes of the problem. In this case the Act will only serve as a last option for those individuals who feel strongly enough to make a complaint in regard to the Act.

Amending federal laws which are discriminatory

The discussion paper also refers to the range of federal Acts which require amendment in order to abolish their age discrimination provisions or their effects. It will be important that the new Age Discrimination Act is accompanied by amendments to the following:

• the Workplace Relations Act 1996 to broaden the scope of workers protected from age discrimination under the Act
  
  
• the Public Service Act 1922 to remove compulsory retirement ages in the Commonwealth Public Service
  
  
• the Air Force Act 1923 to remove compulsory retirement age of 55
  
  
• the Defence Act 1903 to remove compulsory retirement age of 55
  
  
• the Safety, Rehabilitation and Compensation Act 1988 to remove the age limit of 65 for workers' compensation claims.
  
  
• the Superannuation Industry (Supervision) Act 1993 to remove age limits on superannuation contributions.

In addition to those Acts mentioned in the report, we believe that the requirement in Corporations Law for a special resolution at a general meeting to enable company directors 72 and over, to sit on a board is discriminatory and should be abolished.

There may also be other federal Acts which include provisions which discriminate on the basis of age. A thorough review of all federal legislation is needed to identify such provisions to be included in the development of comprehensive federal age discrimination legislation. The review should cover both direct and indirect forms of discrimination.

Effectiveness of a new Age Discrimination Act

While a new Age Discrimination Act would be most welcome, COTA has major reservations about the effectiveness of such an Act under the new arrangements which have come into force since the Human Rights Legislation Bill (No.1) 1999 was passed in the Senate on 20 September 1999.

Under this Amendment, the Human Rights and Equal Opportunity Commission (to be renamed the Human Rights and Responsibilities Commission) will no longer be engaged in hearings but will only have a role in the conciliation of complaints. Where a complaint cannot be conciliated, it will need to be referred to the Federal Court for a determination.

Major issues emerge from this new arrangement around the difficulties that will face an individual lodging a discrimination complaint:

• fear of being involved in a court case
  
  
• the costs of lodging a discrimination case with the Federal Court
  
  
• the costs of legal representation to match that of the defendant who will almost always have more resources at their disposal
  
  
• court costs in the event of losing a case.

COTA appreciates that the intent of the new legislation is to open an avenue for enforceable determinations, following the 1995 Brandy v Human Rights and Equal Opportunity Commission decision in which the High Court ruled that the HREOC did not have powers to make enforceable determinations. However, the new arrangements are clearly extremely problematic in creating an avenue for individuals to pursue complaints.

For discrimination legislation to be effective, it is critical that cost barriers and barriers to legal representation for individuals pursuing complaints be addressed.

Need for a Commissioner/Deputy President for Age Discrimination

COTA believes that the proposed new structure for the Human Rights and Equal Opportunity Commission (to be renamed the Human Rights and Responsibilities Commission) will need to accommodate a fourth Deputy President/Commissioner in order to effectively administer a new Age Discrimination Act.

Our experience in the area of age discrimination leads COTA to believe that there will be a very large number of complaints as a result of implementation of the new Act. It would not be feasible for one of the Deputy Presidents with responsibilities in the other areas to take on this vast work load.

The Deputy Commissioner will need adequate staff and resources to assist in the administration of the Act.

MAJOR AGE DISCRIMINATION ISSUES

The discussion paper provides a comprehensive overview of major areas of age discrimination.

Employment

In COTA's recent work on mature age employment in regard to the House of Representatives Standing Committee on Employment, Education and Workplace Relations, Inquiry into Issues Specific to Older Workers, age discrimination was identified as the single most important issue facing older people in the labour market in the following areas:

• retrenchment practices
• job search
• access to training especially on the job
• treatment by public and private employment agencies.

The HREOC discussion paper provides a reasonable overview of discrimination in retrenchment, job search and training but does not consider another important issue that COTA has identified in regard to the position of older people - their treatment by public and private employment and recruitment agencies.

In July, COTA ran a focus group with unemployed mature age people in Melbourne. We have presented the findings of the focus group with recommendations as a supplementary submission to the Inquiry into Issues Specific to Older Workers. We will send a copy of the supplementary submission to HREOC as soon it has been publicly released by the Committee. However, we present the findings in regard to recruitment and employment agencies. These findings are supported by an earlier submission which we presented to the Inquiry and which we have included with this submission.

Private employment and recruitment agencies

Most of the participants were registered with large private employment agencies in Melbourne. They reported that these agencies offered very little in the way of assistance. They felt that like the public employment agencies, the private employment agencies had "parked" them: that is took no interest in them and left them to wilt on their books.

Some of the group had lodged their names with a number of agencies but there had been no follow-up from their registration. They suspected that the agencies did not put their names up for jobs due to their age.

They believed that the agencies had profiles of the sort of people that they were looking for on behalf of employers and the agencies were paid on a commission basis to supply the candidates that fitted the profile. There was thus automatic discrimination built into processes of the recruitment agencies.

The Job Network

Three people in the group were registered with Centrelink and were registered with employment agencies in the Government's Job Network. They felt that they were not given assistance by these agencies. They had been "parked" which meant that the agency did not expect to be able to find a job for them and as a consequence did not try to.

Other areas of discrimination

With an ageing population combined with rapid social, economic and technological change, there will increasingly be a complex range of issues to be addressed in the community. A number of these will need careful monitoring and evaluation. Many have been mentioned in the discussion paper. COTA believes that the following areas will be particularly sensitive in the future:

• Access to health care under conditions of limited resources and budget constraints: the discussion paper reports on the difficult decisions that already are being made in some areas as to who gets medical treatment on the basis of age.
  
• Access of older people to higher education and other training opportunities. With a rapidly changing labour market, it will be increasingly important for mature age people to be able to acquire necessary skills. Many mature age people COTA has spoken to report on the cost and time constraints to acquiring the necessary training for new jobs.
  
  
• Adoption of new technologies and expectations around the use of these new technologies. Older people could quickly find themselves on the margins of society and the economy as a result of the widespread and rapid adoption of new technologies in a wide range of contexts. The rapid adoption of electronic banking is a case in point where older people have been required to come to terms with the new technology within a very short time frame.

CONCLUSION

COTA supports the enactment of federal age discrimination legislation to complement existing State and Territory legislation and to fill gaps in existing Commonwealth legislation. We believe that this will be an important step forward in redressing age discrimination in the community.

COTA also believes that the following will be important elements in the success of the legislation:

• An Age Discrimination Act will need to be linked to a well resourced and concerted public education campaign both about the Act and age discrimination.
  
  
• Amendments to other federal laws which embody discriminatory provisions, following a review of all Commonwealth legislation.
• The Act will need to be administered by its own Deputy President/Commissioner and will need adequate staff and resources.
• The new arrangements in regard to enforceable determinations through the Federal Court need to ensure that complainants are not disqualified from taking cases forward due to cost or other barriers.

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The final report Age Matters?: a report on age discrimination by the Human Rights and Equal Opportunity Commission was launched on 18 July 2000 at the Council on Ageing (COTA) Australia, Melbourne. Click here for details.