Federal legislation against age discrimination
The Age Discrimination Act 2004 (Cth) (ADA) is the primary federal law prohibiting age discrimination in Australia. It protects both younger and older people from unfair treatment in several key areas of public life.
Key areas covered by the ADA
The ADA makes age discrimination unlawful in:
- Employment: Including hiring, training, promotion, and termination.
- Education: Covering enrolment and access to courses.
- Accommodation: Relating to renting or buying property.
- Goods, services, and facilities: Such as banking, insurance, and transport.
- Access to premises: Including public places like shops and restaurants.
- Administration of Commonwealth laws and programs: Pertaining to government services.
Direct vs. Indirect discrimination
The ADA addresses two forms of discrimination:
- Direct Discrimination: Treating someone less favourably based on their age compared to someone of a different age in a similar situation.
- Indirect Discrimination: Applying a rule or policy that is the same for everyone but unfairly disadvantages a particular age group.
State and territory laws on ageism
All Australian states and territories have their own anti-discrimination laws that operate alongside the federal ADA. These laws may have slight differences in scope or legal tests compared to federal legislation.
Examples of state and territory anti-discrimination laws that include age protections are:
- Victoria: Equal Opportunity Act 2010
- New South Wales: Anti-Discrimination Act 1977
- Queensland: Anti-Discrimination Act 1991
- Western Australia: Equal Opportunity Act 1984
- South Australia: Equal Opportunity Act 1984
- Tasmania: Anti-Discrimination Act 1998
- Australian Capital Territory: Discrimination Act 1991
- Northern Territory: Anti-Discrimination Act 1992
Workplace protections under the Fair Work Act 2009
The Fair Work Act 2009 (Cth) provides additional protections against age discrimination in the workplace through its 'General Protections' provisions. It prohibits employers from taking 'adverse action' against an employee or job applicant because of their age. This can include dismissal, disadvantaging an employee, or refusing to hire someone. The Act can also place a 'reverse onus of proof' on employers in certain cases, requiring them to demonstrate that age was not a factor in their decision.
Key exemptions and lawful age-based distinctions
Australian law permits certain actions based on age that are not considered unlawful discrimination. These include:
- Refusing employment if age prevents meeting the job's inherent requirements.
- Actions providing a genuine benefit or meeting a specific need for a particular age group (positive discrimination).
- Paying youth wages according to industrial agreements.
- Actions necessary to comply with other laws.
- Considering age for insurance, superannuation, and credit products based on data.
Comparison: Making a complaint under different acts
| Feature | Age Discrimination Act 2004 (Cth) | Fair Work Act 2009 (Cth) | State/Territory Anti-Discrimination Laws |
|---|---|---|---|
| Primary Agency | Australian Human Rights Commission (AHRC) | Fair Work Commission (FWC) for conciliation; Federal Courts for resolution | State or Territory Anti-Discrimination Body |
| Time Limit | 12 months for AHRC complaint; shorter for court after AHRC. | 21 days for dismissal complaints; 6 years for other adverse action. | Varies by jurisdiction (often 12-24 months). |
| Process | Mandatory AHRC conciliation first, then potential court action. | FWC conciliation for General Protections, then potential court action. | Complaint to state/territory body, conciliation attempt, then tribunal/court if unresolved. |
| Remedies | Conciliation outcomes are non-binding; court can order damages, reinstatement. | Reinstatement, compensation, penalties. | Varies, can include compensation, apology. |
| Onus of Proof | Discriminatory intent doesn't need to be the sole reason. | Employer must prove action was not discriminatory in adverse action cases. | Often requires age to be a 'substantial reason'. |
The process for making a complaint
If you experience age discrimination, you can address it directly, make an internal workplace complaint, or lodge a formal complaint with the relevant authority. Federal complaints under the ADA go to the Australian Human Rights Commission, while employment-related matters may go to the Fair Work Commission. These bodies typically attempt conciliation first. If conciliation fails, further legal action may be pursued in Federal Courts.
Conclusion
Australia has a multi-layered legal system to combat age discrimination, including the federal Age Discrimination Act 2004 and the Fair Work Act 2009, along with state and territory laws. These laws prohibit discrimination in areas like employment, education, and services, offering various avenues for complaint and resolution. However, lawful age-based distinctions exist in specific circumstances. Understanding these legal protections is key to challenging ageism. For more information on making a complaint, consult the Australian Human Rights Commission.
