Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Hansard source

I thank the chamber for that indulgence and apologise for being a few minutes late to speak on the Age Discrimination Amendment Bill 2006. Two years ago, as this chamber would be aware, the Age Discrimination Act 2004 came into effect. In passing this legislation, parliament took a great step forward in recognising the valuable contribution to the life, wealth and wellbeing of the nation made by Australians of all ages, from children to the elderly. We recognised that, although people of different ages have different needs and different abilities, age alone should not be used to discriminate between citizens in the context of employment, education or the provision of goods and services. Young or old, people should be treated as individuals and judged on their merit, not their age.

The Age Discrimination Act is the newest addition to our collection of antidiscrimination statutes that do so much to protect the rights of everyday Australians and in particular to protect them against arbitrary, irrational and bigoted treatment. The Racial Discrimination Act, the Sex Discrimination Act, the Disability Discrimination Act and the Age Discrimination Act are key pieces of legislation that protect one of the most fundamental of our national values—respect for human rights.

This is an impressive range of legislation. With the wealth of protections in place, it is surprising that the government is so reluctant to acknowledge that this is part of a national respect for human rights and that the words ‘human rights’ are so rarely uttered by the government unless it is to disparage them as something that other people in other countries should be worried about. We have a proud history. There has been a proud history previously—and prior to this government—of recognising these sorts of things. I am both fearful and worried that the government is prepared to deride rights in the way that it does so regularly and in so many areas.

In some ways, it was a surprise, but a pleasant one, to see that the government was prepared to take this step and introduce age discrimination protection through the Age Discrimination Amendment Bill 2006. As I will flag in a moment, and as people will remember, at the time the original legislation was introduced we did have reservations that the act did not go far enough.

Labor have always been a strong advocate for the greater protection of human rights. We are very proud both to have created the human rights commission but also to have played the role we did in introducing the Racial Discrimination Act, the Sex Discrimination Act and the Disability Discrimination Act. We were happy to support the Age Discrimination Act when it was considered in this place two years ago. But members—including, I am sure, the Attorney—will remember that our support was not unqualified. We thought the bill did not go far enough and created a weaker standard than applies in those other Labor antidiscrimination acts. Unlike in the areas of race, sex or disability discrimination, this act works to prevent discrimination only when it can be shown that the age of the person was the dominant reason for the discriminatory act.

This is a much weaker standard, where age discrimination is treated as a lesser order issue than other types of arbitrary or prejudicial treatment. It seems to me that, particularly in a world where we so often at least with our language—and the government is very keen to do this—pay respect to older Australians and the contributions that they have made to the community, to give people a weaker protection on the basis of age than they would have on the basis of race, sex or disability is contrary to where the government has traditionally wanted to position itself. When you look at the sort of pressure particularly older Australians are under in the workplace, not giving them a strong protection from age discrimination seems to be a weakness with this legislation. An opportunity could be taken while this act is introduced or in the future to bring protection for age discrimination on par with the other legislation.

There is another very important criticism that the government did not pick up on at the time, and I would like to use this opportunity to urge them again to reconsider this. We were very critical and continued to be critical of the government for failing to pick up our idea to include provisions prohibiting harassment on the basis of age. We know that this can be a big problem. Probably it is more often thought about as a problem for young people in their first jobs. One study at Griffith University in 2001 estimated that workplace bullying cost Australia between $6 million and $13 million in lost productivity. Not all of that bullying necessarily involves age based harassment, but we do know that the bullying of younger workers is a large part of this wider problem, particularly through some very barbaric examples of so-called initiation rituals et cetera in the workplace. The government should take this seriously. They particularly should look at whether there is a need for this provision, given that they have introduced wide-reaching reforms in the Work Choices package that will leave people fairly exposed.

I am sure the Attorney will stand up and say, ‘Oh, but there is unlawful discrimination protection still in the Work Choices package.’ There is some protection if people can afford to mount a Federal Court case. The $4,000 that you are not allowed to use for litigation but can use for advice is not going to go very far if a 16-year-old who has been harassed and dismissed on the basis of their age wants to make a complaint. I do not think that the protection from dismissal only, where the only remedy is going to a court that most people cannot afford to go to, is adequate. Think about this: there is no protection against anything else that may happen but that might not be dismissal. There is no protection against the sort of discrimination that may occur at the point of interview, in the conditions of employment people might be offered or if someone wants to complain about being harassed. These issues could be dealt with and are dealt with in other discrimination legislation, but for some inexplicable reason age is not seen as an important enough issue for the government to give people—that is, either younger or older Australians—the same protection that they have from being mistreated on the basis of sex, race or disability.

It is not just younger workers who need this protection through our laws. Intimidation, humiliation and abuse of the elderly are also entirely inconsistent with the Australian way of life. We have unfortunately seen some pretty horrible examples of elder abuse starting to arise in our aged care sector. I am not suggesting that this act would deal with that. What I am suggesting is that it is not unknown for older Australians to be the victims of harassment, bullying or abuse, and I can see no reason why the government would want to hold back from putting a protection like that into this legislation. I am hopeful that the Attorney will give us the reasons why he is not prepared to do that, even when we revisit this legislation two years on from its initial introduction. Clearly, the elderly should be able to be protected. They should in any civilised society be able to be confident that they can live their life freely and without harassment or bullying from others. Our laws should reflect that and provide a clear message that the harassment of older Australians will not be tolerated.

Sadly, two years ago the coalition refused to accept Labor’s amendments to address these two issues. We fought hard for them, both in this place and the other place, but, in the face of really quite determined intransigence from the Attorney-General, the bill had to go through in its more limited form. That was the story of the act two years ago. The general circumstances that we flagged we were concerned about have been made significantly worse by the introduction of the Work Choices package.

But there was one very important part of the act that Labor fully supported and that created the need for the bill we are talking about today. The act that was introduced two years ago provided a two-year window for the Commonwealth to get its own house in order. Section 39 of the main act provided a two-year period in which a general exemption existed for any discriminatory conduct that was done in direct compliance with the Commonwealth law. This had the effect of putting some pressure, of course, on the government to do serious and urgent work to identify whether there were any Commonwealth laws that ought to be exempted from age discrimination rules. It is much better, of course, to do this work and then provide very specific and limited exemptions rather than to continue with the general exemption for the Commonwealth. This bill is the result of the commitment made at the time to the two-year review that has been undertaken, and the broad two-year exemption period expires on 23 June next. If it were not for this bill, many areas of legitimate age based discrimination in the law would become ineffective or unlawful on that day.

What this bill proposes to do is something that Labor can support. The bill proposes to exempt Commonwealth laws in three categories. The first I would call categorical exemptions. These provide exemptions in the body of the act for certain categories of Commonwealth law. One example in this category is an exemption for law which creates age based rules for the service of documents. It is standard that documents are only taken to be served in a litigation process when they have been provided to a person whom the server reasonably believes to be over 16. This is clearly a type of age based discrimination but it is also a reasonable and legitimate protection. We want to ensure that the sorts of age requirements that serve a legitimate public purpose are able to continue and will not run contrary to the Age Discrimination Act. There are a number of other examples of laws that fall within similar categories.

The second group is exemptions for whole Commonwealth laws. These are listed in schedule 1 of the bill, which already lists some laws to which the Age Discrimination Act does not apply. These include laws relating to the age restrictions, for example, for civil pilots—which are required by international law—and also to the National Classification Code, which clearly sets up a system of classification based on age discrimination in order to protect our children from inappropriate media content. Obviously, it is appropriate to continue an exemption for these sorts of categories of laws where there is actually a legitimate age based reason that a law needs to specify ages for certain categories of conduct. We support such exemptions so that the Age Discrimination Act cannot be used to knock over important pieces of legislation that include some protection for, usually, the young or when there are other international standards that have to be acknowledged.

The third category involves exemptions for specific provisions of other laws. These are going to be clearly listed in the new schedule 2 of the act. They include exemptions for the provisions, for example, of the Passports Act, which allows that a passport has to be refused to a minor where there is not appropriate parental consent. Clearly this is a sensible rule to help prevent child abduction, which unfortunately we have seen occurring a little more in recent times.

Schedule 2 would also include a provision of the Workplace Relations Act which prevents a person under the age of 18 being appointed as a bargaining agent in workplace negotiations. This is consistent, of course, with the rule that persons under 18 cannot consent on their own behalf to a workplace agreement without their parent’s or guardian’s consent as well. That is a fairly minor protection when you look at the whole scheme of what the government is doing in the workplace relations area. Nevertheless, it is a protection that we want to ensure is still there.

The opposition have looked at each of the proposed exemptions and we believe that they are based on sensible and legitimate policy grounds. As a result, we do support this bill. In fact, we look forward to the speedy passage of this bill and then to 24 June when the Age Discrimination Act effectively will reach its full force, binding the Commonwealth as well as its citizens.

On the Age Discrimination Act itself, as I have already flagged, we still firmly hold to the view that it is not as strong as it should be. Age discrimination should not be considered some lesser evil, with a weaker test applying to it than the tests that apply to race, sex or disability discrimination. We also believe that the law should truly reflect the Australian value of a fair go by prohibiting harassment based on age. Our young workers and older Australians deserve to know that the law will protect them from bullies in our community, and we will continue to press for those changes to the Age Discrimination Act.

In the meantime, we welcome this opportunity to meet the requirements of the two-year review and to fix up the act so that it does not have such broad exemptions, so that we specify those particular acts that are required to be exempt and so that the age discrimination protections can operate with full force from 24 June this year. I commend the bill to the House.

See this speech in context