LAUNCH
OF AGE MATTERS:
A report on Age Discrimination
Chris Sidoti, Human Rights Commissioner, 18 July 2000, Council on the Ageing (Australia), Melbourne
Introduction
I would like to welcome you all to the launch of Age Matters: a report on age discrimination. I would also like to thank Denys Correll and the Council on the Ageing Australia for hosting this event.
Age Matters is a response to the need for effective federal action on age discrimination. For over 10 years federal governments of both political persuasions have talked about this but done little. The situation now is that the Commonwealth lags far behind every state and territory in protecting people from discrimination based on age. Age Matters tells the Commonwealth it's time to catch up.
Age discrimination against young and old
Age discrimination is often seen as relevant only to older people but it is in fact an issue for all of us. We are all potentially targets of age discrimination at some stage of our lives - at 16 we may be thought too young to perform a job; ironically some years later we may be seen as too old.
Younger and older age groups in particular are judged by their age rather than their abilities. It is often presumed that because you are older you are lacking in energy or enthusiasm, or that you are not interested in working or unable to adapt to change. If you are young it is often presumed that you are lacking in values or opinion, are inexperienced or unable to commit. These stereotypes can seriously limit access to opportunities and concrete economic and social benefits.
It doesn't matter what age you are, you should not be denied access to accommodation, goods and services, employment, social security and other benefits solely because of your age and without good reason.
Although it shouldn't 'matter', in fact what the Human Rights Commission hears from people is that age does 'matter'. That's why we have titled the report Age Matters.
Last April at a seminar in Canberra we launched a discussion paper on age discrimination, that asked whether Age matters?
The discussion paper called for public comment on a wide range of areas where age distinctions are made, to identify some of the gaps in age discrimination legislation and suggest ways of eliminating age discrimination.
We received 57 submissions from a variety of organisations discussing a wide range of areas where age discrimination occurs against younger and older people. The Age Matters report we are launching today incorporates the comments made in submissions.
Age discrimination in employment
We were told that employment is the key area where age matters.
An obvious example is in the defence force. Many age distinctions are specified in defence force legislation, regulations and policy, setting age limits for recruitment, promotion and duration of employment. The Australian Defence Force (ADF) currently requires all employees to maintain a standard of health and fitness amounting to combat readiness. That is fair and proper. But the defence force seeks to meet this requirement not only by assessing the abilities of individual applicants but by imposing strict limitations for all applicants to the forces and requirements that most personnel must retire by the age of 55 years. This means that, if you are a 36 year old, no matter how fit and capable you are, you are automatically barred from entering certain sections of the air force. And if you are a 55 year old, with more than 20 years experience in the forces, no matter how fit and capable you are, you are forced to retire, even though you may be suitably qualified and experienced in the many non-combat jobs currently needed in the forces.
I have recently issued a report, which I have copies of today, on four complaints to the Commission of discrimination by the Commonwealth in the ADF. The complainants were three prospective entrants to the ADF and one serving member who complained about the upper age limit for applicants for a number of positions, in all cases 35 years. I found in all cases that the age limit constituted discrimination in employment and could not be justified.
Young people also face discrimination in employment. As one submission told us about a particular company
The discrimination at [this company] is subtle, young people think that the Managers are just mean, yet looking back on the way young employees were treated I think you could definitely call it discrimination. Older workers would never be treated the way that young workers are at [this company], nor would they stand for it.
We all want young people to find work. Government policy is directed towards that. But what is particularly disheartening for young people is that age often matters even for jobs which do not require experience. Even when young people have some experience, they are told point blank that they are too young. One mother of an 18 year old school leaver rang us in despair. Her son had been told directly several times by employers on the phone 'sorry, but we don't want to take on someone so young'. And, as outlined in the report, an 18 year old who is forced to apply for income support, because he or she cannot find a job, receives a differential payment of support based solely on age not circumstances.
These are but a few examples raised with us of judgements based on age rather than abilities or needs. Other employment-related areas highlighted in the report include differences by age in access to training and promotion, redundancy payments, superannuation, workers' compensation and wages. Submissions also raised difficulties in finding accommodation, buying insurance, getting healthcare and being denied a range of income supports and benefits.
Lawful discrimination
Not all discrimination is unlawful. Anti-discrimination laws generally permit distinctions on two principal grounds.
Usually distinction in employment is lawful if it is genuinely based on the 'inherent requirements of the job'. This allows an employer to impose age limits when it can be shown that they are essential in a particular job. For example, an actor playing a child's role in a television production may have to be young.
Second, under anti-discrimination and human rights laws distinction is also lawful when it can be justified as a special measure of protection or assistance. For example, government programs that help young people or older people find work may be considered a special measure because they assist young people and older people to overcome their relative disadvantage in the employment system.
In Australia we have good state and territory anti-discrimination laws to prevent age discrimination. They recognise that certain age distinctions are justifiable and indeed necessary to assist certain sections of the population. And they prohibit unjustifiable age discrimination and provide remedies.
However, Age Matters reveals that there are some continuing problems with our legal protection against age discrimination.
Legislative gaps in protection
The major problem is that, although State and Territory coverage of age discrimination is fairly comprehensive, the Commonwealth legislation lags behind.
Unlike race, sex and disability discrimination, there is no age discrimination act at the federal level which makes age discrimination unlawful. The federal Workplace Relations Act 1996 provides some coverage in relation to termination in employment but it does not cover other terms of employment, such as redundancy provisions or recruitment or promotion. This is important for Commonwealth employees, who are not covered by State and Territory legislation. Under the Human Rights and Equal Opportunity Commission Act 1986 a Commonwealth employee who has been discriminated against in employment on the ground of age can complain to the Commission and we are able to investigate the complaint. However, our conclusions are not enforceable, they are only recommendations. Also, the Act only covers discrimination in employment.
Second, although all the State and Territory anti-discrimination laws are similar in coverage, they are not identical. There are some differences in how age discrimination is treated, especially in terms of the exemptions to the provisions. For example, under the Tasmanian Anti-Discrimination Act, compulsory retirement is exempt from the prohibition of age discrimination.
We recommend in Age Matters that the federal government improve our federal anti-discrimination legislation to make age discrimination unlawful. This will not only protect Commonwealth employees and those who benefit from Commonwealth programs. It will also provide a model of anti age-discrimination legislation and improve uniformity of coverage for other Australians.
We are well aware that making age discriminatory practices unlawful in federal anti-discrimination law would not solve all the problems of age discrimination raised in submissions. As well as bad practices there are bad laws. There is a plethora of federal, State and Territory laws and policies which include age distinctions - everything from superannuation and tax legislation through to the age which you can apply for a driving licence and whether you are paid junior wage rates. Some of these may be justifiable - but others are outdated and need to be changed through legislative amendment.
We recommend that the federal government review these laws with the view of eliminating unreasonable and unjustifiable age distinctions. For example, the Social Security Act 1991 should be amended to ensure that income support for young people is paid according to need rather than age.
Education and legislation
It is also important to remember that legislation does not solve every problem. Many submissions suggested that changing community attitudes is crucial. I agree. Stereotypes and unfair assumptions about certain age groups are deeply entrenched in our society. Employers, employees, media and the general public need to have these assumptions challenged. We also need to present the positive images of community contribution by people of all ages. Respecting diversity across all generations benefits us all.
Some opponents of legislation argue that law at most can only change behaviour not attitudes. However, education and legislation are two indispensable and complementary ways of ensuring equal opportunity. As Martin Luther King said
morality cannot be legislated but behaviour can be regulated. Judicial decrees may not change the heart, but can restrain the heartless.
Who needs to take responsibility for changing attitudes? Everyone. But it is government - especially federal government - that must demonstrate a commitment to combating this unfair discrimination.
Federal government commitment
The Australian government has agreed under international law to eliminate discrimination on a number of grounds, including age. These international treaties include the Discrimination (Employment and Occupation) Convention or ILO 111, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. There are also treaties and declarations which demonstrate our special responsibilities to ensure that children's and older people's rights are respected.
I am very pleased that since the release of the discussion paper in April 1999, the federal government has made some encouraging moves towards addressing the problems faced by older people in the workforce. In December last year, after many years dragging its feet, the federal government finally abolished compulsory retirement in the Commonwealth public service. Other initiatives include amending the Safety, Rehabilitation and Compensation Regulations to allow public service employees to receive incapacity benefits for a maximum of two years at any age after 63. And I have been advised that the ADF is reviewing its age requirements for recruitment and promotion. The House of Representatives Standing Committee on Employment, Education and Workplace Relations has also made a comprehensive inquiry into older workers seeking employment. I look forward to the results of that inquiry.
However, I remain disappointed that protection from age discrimination has still not been addressed comprehensively by the federal government, despite bi-partisan support for action for most of the last decade. I am also concerned that age discrimination facing younger workers is ignored.
In Age Matters we urge the federal government to take the lead in addressing age discrimination and ensure that all Australians receive equal and adequate protection from discrimination.
Today we have the pleasure of hearing from two people who represent populations towards the two ends of the age spectrum - the young and the old. Denys Correll, the Executive Director of COTA Australia, has been outspoken in protecting the interests of the older people in our population. Clare Griffin works for the CREATE Foundation in Victoria, which is an organisation run by and for children and young people in care. I thank them for agreeing to talk today about the issue of age discrimination from these two perspectives.
