Jill Hall (Shortland, Australian Labor Party) Share this | Link to this | Hansard source

At the start of my contribution to this debate on the Age Discrimination Amendment Bill 2006 I want to mention that the shadow Attorney-General will be speaking after the member on the other side rather than at this time. My contribution will precede hers. I also understand that we have another speaker from this side. I mention that for the information of the Attorney-General.

We are supporting this legislation. The exemptions that are sought will allow the proper functioning of the legislation. The changes that are identified in the legislation are for specific exemptions. This is a result of departments and the government conducting an audit of all Commonwealth laws to determine whether any ongoing exemptions are required.

At the start of my contribution to this debate, I would like to highlight some of the points that I made in the debate on the Age Discrimination Bill 2003. At that time I congratulated the government on introducing the legislation. As the shadow Attorney-General has come into the chamber, I seek leave to continue my remarks after she makes her contribution.

Leave granted.

Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to 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.

Russell Broadbent (McMillan, Liberal Party) Share this | Link to this | Hansard source

I enjoyed the address by the previous speaker, the member for Gellibrand, on the Age Discrimination Amendment Bill 2006. She raised a concern of harassment in her address. With regard to harassment, I have lived in a world of decent employers, of decent employees and of people who are reasonable and who are watching what is going on in the workplace. My experience has been that, where there was discrimination against or harassment of any person, on every occasion that was drawn to the attention of the employer or those in responsible positions, whether they were the director of an institute, part of the community or part of the family farm.

There are always anomalies and one recent anomaly was the harassment of older people in aged care facilities. My view is that those particular situations were for policing decisions, not for aged care decisions. We are forever going to have problems in specific areas, but where police should be taking direct action that should be done, as against making a whole-of-government or whole-of-industry policy, particularly in aged care.

From my experience in Gippsland, we have the best aged care system, including the people that deliver that system: the nurses and other staff, and the administration. No-one can knock what we do in this country. The care and consideration given to our older people is absolutely sensational. That is why I get really concerned at our overreaction when there are reports in the media about a number of small instances. We do not treat it as a police matter but as a whole of industry matter and jump all over the whole industry, which then makes these people quite afraid about what they do.

I am concerned about the address of the shadow minister, the member for Gellibrand. My fear is that if you were in government you would overregulate to the point where you would discount the ability of people to manage their workplaces.

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

Ms Roxon interjecting

Russell Broadbent (McMillan, Liberal Party) Share this | Link to this | Hansard source

Of course I would not take away the things we have in place that are quite reasonable. We have put those sorts of things in place. But if you overregulate you stifle everything that happens and discount reasonable people.

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

Why is age less important?

Russell Broadbent (McMillan, Liberal Party) Share this | Link to this | Hansard source

Age is important. All of these things that you have just raised in your interjections are important. However, my concern is that your tendency is to overregulate on every occasion. You think you have the answers to everything, but I can tell you that neither I nor you have the answers to everything.

We can reasonably put processes in place that are acceptable to the Australian community, keeping in mind where we want to go and the sorts of protections we want for people. But we must not overregulate to the point where the controls on the industry, the management or the staff are completely overwhelmed by governments who think they can just come in, tread all over the whole situation and ignore the processes.

In the lead-up to the 2001 federal election, the Howard government promised to develop legislation that would prohibit age discrimination, the aim being to eliminate age based discrimination in key areas of public life. The Age Discrimination Act 2004 implemented this commitment to the Australian people and is working well. People from all walks of life, regardless of their age, should not have to tolerate negative stereotypes. I say this about younger and older workers but today particularly about older workers.

Throughout the whole of my retail career, I was in praise of older women. I was in praise of older women because they were very effective in all our business activities. We were flexible in our arrangements—as the new IR laws are to be flexible in their arrangements. People were able to work the hours that suited them, after they dropped their children at school and before they picked them up again. They were able to come in at night, if they decided to do that, and work when their children were being cared for by a spouse, partner or grandparent. They were able to perform tasks that they were specialists in, and they were excellent in the delivery of their service to the customers and clients that we had.

Throughout my life I have been concerned about men—particularly men—and many women who found themselves, for one reason or another, without work. This occurred after a life of domestic activity, in many cases, with regard to women, and with men who had been in a particular stable job for a long time, say working for GMH in those days or working for International Harvester or Nestle. At 45 years of age, no-one wanted them. We have to have laws like this where we give a guide to people as to where we want our older people to be employed.

For a long time now we have been looking at proposals where people retire at around 50 years of age. With regard to planners and all sorts of other people, that is not the time for them to be retiring; that is the time for them to be taking off. They can actually look at the mistakes they have made. In my case, I am glad that there is not a retirement age of 60 for politicians. I would have five years to go, and I have a lot more work to do in this job than five years can possibly allow. There is a great opportunity for us as a nation to be different, to say to older people, ‘We really value your contribution.’ Whether it is in the area of planning, community activity or aged care, there is a whole generation of people out there whom we need to find new ways to employ.

This act is a guide to protection for older people, but more importantly we as a community have to take a view that older people are valuable in the workplace. They can make a contribution. They can make a mentoring contribution in any company where they may offer their services. We need to get a trend whereby, if a curriculum vitae comes in from someone who is older than 45 or 50, it is not immediately moved to one side and the value of that person not taken into account.

For me, this bill is particularly about the Australian view of older people and how we might put that into law. It has been put into law, but the two-year review of the act has refined the provisions. I commend the bill to the Main Committee. I thank the chamber for the opportunity to speak on the bill and look forward to the Labor Party contributing to the rest of the discussion.

Jill Hall (Shortland, Australian Labor Party) Share this | Link to this | Hansard source

by leave—In continuing my remarks on the Age Discrimination Amendment Bill 2006, I want to start by saying that, unfortunately, I feel that the member for McMillan has actually supported age discrimination. I am very disappointed in some of the statements that he made at the beginning of his contribution—statements directed to the shadow Attorney-General.

We on this side of the House appreciate the fine work done in most aged care facilities throughout the country. But that does not mean that we should ever accept any type or form of discrimination against older people—be it in the aged care sector, where people may not be treated with the dignity they deserve, or somewhere else—or against younger people, who can be bullied, as the shadow Attorney-General identified, and as many of us mentioned in the debate on the Age Discrimination Bill 2003. Those sorts of behaviours are unacceptable. Discrimination of any form is unacceptable. To put a lesser standard on age discrimination, which I believe the member for McMillan was doing, is unacceptable; discrimination should not be tolerated within our community.

When I made my contribution two years ago I emphasised the importance of not discriminating on the grounds of age. At the same time I highlighted the fact that age discrimination does exist within our community and within our society. The government’s action in introducing the Age Discrimination Bill at that time was very late because other states had had it in place for some time and other areas of antidiscrimination had previously been enacted. But the action of finally getting around to introducing that bill was very important. It sent out an important message to the community as a whole that you cannot discriminate against a person on any grounds. Any type of discrimination does not benefit our nation. It leads to loss of opportunity and creates division, negative feelings and actions and marginalisation of people who are discriminated against. There is no basis for discrimination of any form and particularly, as we are discussing now, age discrimination. Discrimination is based on negative stereotypes rather than facts.

I do not think there is any greater area where you can see those negative stereotypes at work than job applications. If you pan through the papers, you will see that certain age groups are more favourably valued by employers. I am sure most members of this House have had people visit them in their electorate office complaining about the fact that when they apply for a job they are either too old or too young. One of the problems with the original piece of legislation was the fact that age had to be the dominant reason. Nowhere is discrimination more obvious than in the area of employment. It can be argued, say: ‘We wanted a qualification in the area of accounting that was obtained within the last 12 months. We wanted somebody who had expertise and knowledge in a particular theory that had just been introduced. We wanted somebody who could perform some other task that was totally unrelated to the job.’

It is important to note here that in New South Wales there were more complaints related to age discrimination made to the Human Rights and Equal Opportunity Commission than there were related to any other form of discrimination. More than 200 people phoned in complaints—I am using figures that are a couple of years old, taken in 1999-2000. Again, in the following year, there were many complaints in that area. People were ringing in and lodging complaints that they had been discriminated against because they had applied for jobs and been advised that they were too old for those positions. When the government is focusing on encouraging employers to employ older workers, when there is an active campaign to encourage employers to take on workers that are older, it seems to me that the fact that it needs to be a dominant reason works against that.

The other area that I would just like to touch on quickly is that I believe, particularly in the area of mature age employment, there is subtle discrimination against particularly blue-collar workers who are over 45. There seems to be a feeling—and once again it is subtle; it is a stereotype; the types of things that lead to discrimination—that if you are a blue-collar worker and you are over 45 then you are unemployable. These are the types of issues that need to be addressed.

I have no problems with the specific exemptions that will be enacted with this legislation. The government has taken two years to complete its audit, and it looks at issues like scholarships, competition prizes, superannuation, the service of documents—I do not think anyone could argue about the requirement that documents should be served on somebody that is reasonably believed to be over the age of 16—pensions, allowances and benefits. Once again, I think that these areas should be exempt, and many of the areas of exemption are actually forms of positive discrimination. Commonwealth employment programs is an area where the government can act to work against some of this stereotyping and age discrimination, and I would like to think that it may become a little more active in doing that. These areas are to be welcomed, to be embraced, as are areas like civil aviation. Also, under the maritime act it is illegal to employ someone that is not 16 years of age. Areas like passports, medical indemnity and private health insurance are all reasonable and should be embraced.

The message that I would like to leave today for the government is that it is very important that we have age discrimination legislation. It is great that we had the legislation introduced in 2003. The exemptions that are included in this legislation are more than acceptable, but I am still not happy with the fact that age discrimination can only be a dominant reason. I believe that is very easy to get around. I think that the government really needs to revisit the original piece of legislation, remove that requirement that it be the dominant reason and treat it in the same way that it treats every other piece of legislation that relates to discrimination.

It is no more acceptable to discriminate against a person on the grounds of age, be they young or old, than it is to discriminate against a person on racial grounds or because they have a disability. In a community where we have an ageing population, in a community where we should be valuing our older people and our younger people, I think it is imperative that ‘dominant reason’ be removed from the legislation. We should get the message out to the Australian community that discrimination on the grounds of age is totally unacceptable.

Steve Georganas (Hindmarsh, Australian Labor Party) Share this | Link to this | Hansard source

The age profile of South Australia’s residents shows that the state has the oldest population in the country. Seventy-five per cent of older South Australians live in metropolitan Adelaide. As a percentage of the population, the electorate of Hindmarsh is one of the oldest electorates in Australia. Therefore I have great concern for how these very valuable members of my electorate are treated by government and the wider society. Despite the introduction of age discrimination legislation almost two years ago, the occurrence of age discrimination in many areas of society is still very rife. Attitudes need to change, especially in employment. It is my hope that the effort to remove exemptions from some Commonwealth acts, regulations, instruments, schemes and programs will, to some extent, assist in a change of attitude.

Media headlines are flooded with announcements of a nationwide skills shortage and an ageing population, as if the two occurrences were synonymous. Too often the potential of the members of our community beyond 50 years of age is ignored. Retraining and reskilling programs are bypassed for skilled migration and other programs. In 2003, Linda Matthews, the Commissioner for Equal Opportunity in South Australia, commented:

South Australia will have a severe labour shortage if business continues to deny the relevance and experience of older workers.

This message cannot be stated strongly enough. It applies not only to South Australia but to the nation as a whole.

Last year the Australian Bureau of Statistics reported that, while the unemployment rate tends to be lower for 45- to 64-year olds than for most other age groups, the people in this age group generally have more difficulty in obtaining work once they become unemployed and, hence, are at greater risk of remaining unemployed for long periods. In fact, almost half the people aged between 55 and 64 are long-term unemployed. According to the ABS, due to the difficulties people aged 45 to 64 face in finding work, they are much more likely to become discouraged and drop out of the workforce altogether.

These statistics reflect the very real bias against older workers, particularly as job seekers. These statistics demonstrate that older workers were facing these difficulties prior to the introduction of the new workplace laws. It is my belief that these new laws will only exacerbate the poor situation for older workers. With corporations given wide powers to hire and fire under these new laws, it is likely that the workforce participation rate of older workers will continue to decline.

The ALP has a long history of supporting workers and will continue to defend the rights of mature workers to participate in the workforce. It will continue to acknowledge the high levels of skill, understanding and experience that mature workers contribute to society. The Australian Bureau of Statistics projects that the proportion of the Australian population aged over 65 will increase from 13 per cent in 2002 to nearly 30 per cent by 2051, while the proportion of the population aged 15 to 64 will decline from 67 per cent in 2002 to between 57 and 59 per cent in 2051. So, if attitudes towards the participation of mature people in the workforce do not change in the immediate future, the results could be disastrous for our economy.

There were some examples in the lead-up to the millennium. With the Y2K bug scare, the information technology industry realised very quickly the problems associated with a culture of age bias in their field. At that time, many retired computer programmers were asked to deal with the pending situation. A number of those programmers refused to re-enter the industry as they felt cheated about having been previously forsaken many years before their expected retirement age.

In 2002, the IT Council of South Australia in their newsletter featured an article acknowledging that their industry, along with public relations, media and telecommunication companies, was amongst the worst in terms of age discrimination. The council also noted the danger of overlooking the skill, knowledge and maturity of older employees. The article acknowledged that, if attitudes did not change now, some of the workers may not be able to return to the industry. The IT council quite powerfully described the following:

The bottom line is that there is still a considerable skills shortage across the broader range of knowledge industries and with each year that passes the median age of the knowledge workforce is climbing. Smart employers with an eye on the longer term have already figured out that dumping older workers is a mug’s game. Sooner or later the dim-witted ones will figure this out.

Despite the Australian IT industry’s awareness of this in 2002, an article by Stan Beer from IT Wire demonstrates that the industry, as recently as April this year, is still snubbing mature age workers. Hudson, a recruitment firm, earlier this year surveyed 8,345 employers nationally. Their survey indicates that only 32.3 per cent of employers in the IT sector and 23.8 per cent in the telecommunications sector are proactively seeking to attract and retain older employees. The survey indicated that these industries are still well behind other sectors. The director of Hudson’s IT sector has commented that IT employers must take serious note of the findings in the survey and act immediately to retain competitive advantage, given the ageing workforce and skill shortages. He also mentioned that the sector is especially lacking in reskilling and retraining programs, and that the sector needs to examine the proactive strategies to attract and retain mature age workers, including flexible work options.

The example I gave about the situation in the IT industry should highlight the importance of government’s responsibility in raising awareness and assisting in changing attitudes towards age discrimination, particularly in the workplace. These amendments are just the beginning of what needs to be done by government to demonstrate leadership in changing attitudes in this area. I note that the government must provide proactive assistance in defeating ageist attitudes that are so obviously still rife throughout many industries. Labor supports a strong program of awareness and recognition of the importance of defeating a culture of age discrimination throughout all sectors.

There is also a wider impact of ageism in the workplace. As can be seen with the IT workers who did not want to come back when called upon to assist with the Y2K issue after being dismissed due to their age in earlier times, the mental impact of age discrimination is very high and extremely underestimated. The rejection that those IT workers, as well as many others who have suffered age discrimination, feel is legitimate and should be addressed. Awareness needs to be raised about the social impact and especially the impact on the families of people who are not able to find employment once they are over a certain age.

Depression and other mental health issues have been linked to unemployment and loss of control over work in older Australians. Human rights commentators and analysts often comment on the underreporting of cases of age discrimination. People in the community are hesitant to come forward when they have been discriminated against, often because they believe their concern may not be taken seriously. This is another factor that demonstrates the need for change in attitudes about this form of discrimination. Labor believes it is important to bring these issues into the spotlight and to lead the way for a changed, more understanding culture on the age issue.

On the point of education and health in relation to employment, the Council on the Ageing and National Seniors partnership is the largest seniors organisation in Australia, with more than 280,000 individual members and more than 1,500 seniors organisations under its umbrella. The Council on the Ageing and National Seniors partnership’s response to the Department of the Treasury’s May 2004 report Australia’s demographic challenges responded to problems associated with improving the capacity for work. It highlighted the important issue that, in order to address the skills shortages and reduce age discrimination, facilitative mechanisms must be put in place.

The council on the Ageing and National Seniors partnership suggested methods to enable this, one of which was a government commitment to lifelong learning programs enabling workers to upgrade their skills throughout their careers. Further effort needs to be made in education, specifically about learning. If this government is serious in its commitment to reduce age discrimination, we have to take that seriously. In South Australia, while the number of older persons participating in further education programs is growing, these people still only represent a very small proportion of the Australian population. The Council on the Ageing and National Seniors partnership also recognises that, in addition to education, other facilitative measures such as ensuring adequate access to health systems are vital in ensuring that mature persons are able to participate fully both economically and socially in our society.

The ALP have always represented the need for well-funded health and education systems as important cornerstones of our society. We support a strong public health and education system that would see the facilitation of mature people to re-enter and remain in the workforce. We are strongly committed to lifelong learning, and our national platform has an entire chapter dedicated to this commitment. We believe that adult education is an integral part of lifelong learning, and we believe that it should be affordable and flexible.

Another point I want to touch on is volunteer work. When the Age Discrimination Act was passed in 2004, the government rejected a number of amendments by the opposition, including the extension of the laws to cover voluntary work. Volunteering Australia’s submission on the Productivity Commission’s October 2004 study titled Economic implications of an ageing Australia demonstrates that, while the total number of volunteers in the over-65 age group is lower than groups that are younger, volunteers over 65 contribute far more hours on average. However, there are barriers to these people volunteering. We should recognise the important contribution that volunteers make to our society. From emergency services to school canteen helpers, each volunteer is a valuable asset to this country. Volunteering Australia recognises that the barriers to older people’s involvement in volunteering often include an ageist culture coupled with lack of support and training for elder volunteers.

Labor believes in comprehensive age discrimination legislation which covers these valuable older persons in their roles as volunteers and leaders in the community. The government’s failure to properly apply age discrimination legislation to volunteers will have a negative impact on the level of volunteering in the future, especially given the ageing population. Australia’s economy and society depend on volunteers and we should encourage and support volunteers of all ages. I hope that the government’s commitment to fighting age discrimination will not end with these amendments. Labor will continue to raise awareness of age discrimination and continue to fight for the rights of older persons in the community.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to 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.