NSW Legal Aid Civil Law Forum

Speech by Hon. Susan Ryan AO, Age Discrimination Commissioner

Australian Human Rights Commission

Legal Aid NSW

323 Castlereagh St, Haymarket, Sydney

3 November 2011

First let me acknowledge the Gadigal people of the Eora Nation on whose land we stand today. I pay my respects to their elders past and present.

Pleased and honoured to be invited to open this Civil Law Forum.

I notice you describe the key objective of the Civil Law division is ‘to make a difference’.

All of us engaged in the fight against discrimination share that objective with the Civil Law division at NSW Legal Aid.

At the Australian Human Rights Commission, our slogan is

Human rights: everyone, everywhere, every day.

So I can safely assume that we all share the fundamental values that inform our work.

I was pleased to get this invitation for two reasons.

First, it gives me the opportunity to express publicly my respect for NSW Legal Aid and the dedicated and effective work it does.

You ensure that the most disadvantaged members of our community are able to get legal representation and thus have a fighting chance of fair treatment before the law, one of the basic requirements of a democratic society.

The work of Legal Aid, now with a long and honourable history in this state, has always been at the heart of what we claim to be:

a society of equal opportunity, a society that accepts the universality of human rights, and takes that concept as the foundation of all our laws and policies and the guide for how we deal with each other as members of the Australian community.

My second reason for welcoming your invitation is that it gives me the chance to set out for you my approach to my new role as Age Discrimination Commissioner at the Australian Human Rights Commission, and to discuss with you how the people you are there to assist may get protection under the Age Discrimination Act 2004.

But first a few more words on the universality of human rights.

A commitment to this concept was one of the finest and most significant decisions made by Australia as a relatively young nation.

It was after the horrendous destruction of World War 2 and the nightmare of genocide that the surviving nations of the world came together in hope of constructing a better future for all of us.

It was with this hope they established the United Nations.

Australia was a leader in this move, as it was in the development of the Universal Declaration of Human Rights, agreed in 1948.

This global agreement expressed the post war world’s commitment to basic human rights for every person.

Australia’s foreign minister Bert Evatt was a leading negotiator on the Declaration.

Australian feminist and activist Jesse Street as a member of one of the Declaration committees was instrumental in ensuring the inclusion of the equal rights for women.

This was a strong start to Australia’s progress as a nation where rights for all are protected.

Over the years since that high point, Australian governments have ratified all the major UN treaties and conventions that developed from the Declaration.

This work continues under our present Attorney-General Robert McClelland who is implementing Australia’s ratification of the Optional Protocol on Torture.

Despite these historic commitments, and our affluence and our robust democracy, protection of human rights here is not complete.

Early in this 21st century it became obvious to most of us that some vulnerable people in our society, and some desperately trying to join our society, were not protected.

Asylum seekers, refugees, people with disability or mental illness, indigenous, some ethnic and religious minorities, and old people: we could see that many such individuals were slipping though the net of rights protection.

From this recognition came the community movement to achieve a national Human Rights Act, a reform that would put into law all of these international commitments to rights, and close off all the holes in the safety net.

As you know, despite receiving unprecedented public support and participation, the campaign, while effective and important, did not achieve its major objective.

When it received the report of the National Consultation on human rights, the Government stopped short of accepting the recommendation for national Human Rights Act.

In that sense Australia’s human rights story remains unfinished business.

The Government did however accept many recommendations to improve the general understanding of human rights in the community, to strengthen parliamentary scrutiny of all laws from a human rights perspective, and to review existing laws including anti-discrimination laws with the objective of strengthening their operation and the protections they offer.

These measures comprise the National Human Rights Framework which will achieve important improvements in human rights protection

A key part of that work, the exercise of consolidating all anti-discrimination laws, is now underway.

The Australian Human Rights Commission is actively participating in this exercise.

The consolidation project has the potential to improve efficiencies of the operation of these laws, improve accessibility to those experiencing discrimination, and to highlight anomalies and gaps in the coverage offered by the individual acts.

I expect lawyers such as you, dedicated to justice for the most disadvantaged in our community will take a keen interest in this work.

While that exercise is progressing however, it is my job now, every day, to implement the Age Discrimination Act 2004, to ensure that its protections are widely known and used where appropriate.

It is also my daily task to work against deeply held age prejudice throughout the community and tackle the negative age stereotypes that cause so much damage.

I have come to the view in the short time I have been the Commissioner that the ADA is not as widely known or used as Parliament hoped when it made this reform.

Complaints: the most practical aspect of the ADA from the point of view of a person experiencing age discrimination, or the perspective of lawyers assisting victims of such discrimination is the complaints process.

As with all anti-discrimination laws for which the Commission is responsible, individuals experiencing age discrimination may make a complaint to the commission.

You will be aware that this process is simple and free, a person may phone or email a complaint. The Commission’s complaints team will investigate.

Where it seems that age discrimination has occurred, conciliation will be offered.

Most cases of age discrimination that go to consolation are resolved.

The number of complaints under the ADA is by far the lowest received.

This may reflect the fact that the ADA is the newest act, 2004.

It however may also suggest that its provisions are not widely known.

From reading accounts of complaints handled it seems that some employers seem not to have been aware that it is illegal to sack or otherwise treat an employee less favourably simply because of age.

There may be other reasons... negatives stereotypes can be internalised, and I suspect this often happens with older employees particularly older women.

Age discrimination in employment provides by far the most frequent incidents of age discrimination. There is a lot of evidence supporting this alarming picture, and more research underway.

My main priority is to reduce age discrimination in employment.

Through a range of strategies I hope we can create more opportunities for mature age workers to keep their jobs or to be rehired after they lose a job.

Other areas of age discrimination include accommodation, finance, training, and insurance.

You have already engaged in insurance reform. I want to draw your attention to age bars in income insurance.

I am encouraged in this objective by yesterday’s decision to lift the age bar on the superannuation guarantee.

Residential or other aged care is another high priority. In responding to the Productivity Commission’s ‘Caring for Older Australians’ report we will take a human rights perspective on aged cared. Rights do not diminish with age.

In conclusion, age discrimination is the form of discrimination that has arrived most recently on the public agenda...but as damaging and cruel and any form of discrimination and more widespread: it can happen to all of us.

I hope we are seeing the beginning of a new movement for age equality and hope I can play a role in this movement. I expect the aim of eliminating age discrimination will be shared by everyone concerned with protecting the rights of the disadvantaged and that we will work towards an Australia which for everyone realises those ideals we embraced with the Universal declaration of human rights in 1948.