Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Hansard source

in reply—First, I thank my colleagues the members for Gellibrand, McMillan, Shortland and Hindmarsh for their contributions in the debate. I welcome the fact that the Labor Party will not be opposing this measure. However, I will say that much of the debate has not focused on the bill or any substantial objections to it but, rather, on where people believe that the Age Discrimination Act does not go far enough. Interestingly, I recall some 13 years of Labor in government and I do not recall any legislation dealing with age discrimination. The government have put this matter on the agenda; it is amazing how many people develop so-called considered views and alternative ways of addressing questions when you are pursuing an initiative.

I will deal with some of the alternative approaches that have been raised, because the government do have a view about how the legislation that we have implemented ought to be progressed. The member for Gellibrand raises the question as to why there is a dominant purpose test in the act. The act provides that age must be the dominant reason for an act before the act can substantiate a complaint of age discrimination. We argued during the substantive debate on the bill in 2004 that this was a different test from other antidiscrimination legislative measures which provide that the act is taken to have been done for the relevant reason if age is one reason out of a number of reasons. It is the government’s view that the primary solution for most aspects of age discrimination is based on education and attitudinal change. It is critical that the legislation not establish barriers to such positive developments by, for example, restricting employment opportunities for older people by imposing unnecessary costs and inflexibility on employers acting in good faith.

The second issue that was raised related to harassment. While there is no specific provision in the act, this does not mean that age based harassment cannot form the basis of a complaint under the act. The act covers both direct and indirect discrimination. Acts of age based harassment may well amount to an element of discrimination on the basis of age. For example, bullying on the basis of age could fall within the scope of the direct discrimination under section 14 of the act—that is, treating someone less favourably on the basis of their age. Similarly, imposing unreasonable conditions on workers of a particular age would form the basis of a complaint of indirect discrimination under section 15.

The third matter that was raised was in relation to the interrelationship between this and the Work Choices legislation. Section 39(8) of the Age Discrimination Act contains an exemption relating to workplace relations. The purpose of the exemption was to prevent awards and agreements that have already been scrutinised by a court, tribunal or other body with industrial powers, such as the Australian Industrial Relations Commission, from being re-agitated before the Human Rights and Equal Opportunity Commission in the context of a discrimination claim. Essentially, we were seeking to ensure that there was a proper basis on which these matters could be pursued, but we do not want to have in place regulatory overreach by providing a range of opportunities in which matters might be relitigated, be it in a different form.

The Workplace Relations Act provides that workplace agreements that contain prohibited content are void to the extent of the prohibited content. Prohibited content includes material that is discriminatory. Of course, the Human Rights and Equal Opportunity Commission’s existing jurisdiction in relation to discrimination in employment under the Age Discrimination Act as well as the Racial Discrimination Act, the Sex Discrimination Act and the Disability Discrimination Act is maintained. We recognise the value of the commission’s conciliatory based approach and we have increased the commission’s resources to be able to handle complaints in that context.

Issues were raised as to what is happening in the workforce. I heard the member for Hindmarsh making some observations about the need for change. Change is occurring. Mature age employment data indicates that the number of mature age persons in employment has increased in the last 10 years from approximately 2.45 million to 3.7 million. That is up 51.3 per cent. There has also been a 4.3 per cent increase in the past year ending in March 2006. The mature age labour force participation rate has increased by 5.6 percentage points in the past 10 years, from 43.4 to 49 per cent, and the mature age unemployment rate has decreased from 6.2 per cent in March 1996 to three per cent in March 2006. That data relating to mature age persons—45 years and over—is a reflection of the significant change that is occurring in relation to discrimination on the basis of age.

The purpose of this bill is to deal with very specific issues in relation to implementation. The bill is the result of the government’s review of the Age Discrimination Act 2004 in the light of the expiry of the general exemption applying to all Commonwealth acts and regulations, and this is replaced by more limited and specific exemptions and provides legal certainty for a number of laws and programs that are intended to provide benefits for particular age groups. Nobody seems to have any complaint about those issues. The opposition says it supports the measure and I welcome that support. Age discrimination measures through this act remain a key part of the government’s wider strategy to address issues arising from Australia’s changing demography and demonstrate the government’s continued commitment to removing age discrimination as far as possible while taking into account a balanced approach where legitimate age related needs have been identified. It is a very important piece of the government’s legislative agenda, one that we developed when we were in opposition and pursued when we were in government and one in which I think the opposition are really only latter-day converts. I commend the bill to the chamber.

Question agreed to.

Bill read a second time.

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