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Abolition of Compulsory Age Retirement (Statutory Officeholders) Bill 2001



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Dep a rtmen t o f th e

P a rlia men ta ry Lib ra ry

I N F O R M A T IO N A N D R E S E A R C H S E R V IC E S

Bills Digest

No. 47 2001-02

Abolition of Compulsory Age Retirement (Statutory Officeholders) Bill 2001

ISSN 1328-8091

 Copyright Commonwealth of Australia 2001

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Published by the Department of the Parliamentary Library, 2001

I N F O R M A T I O N A N D R E S E A R C H S E R V I C E S

Bills Digest

No. 47 2001-02

Abolition of Compulsory Age Retirement (Statutory Officeholders) Bill 2001

Katrine Del Villar Law and Bills Digest Group 7 September 2001

Contents

Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Relevant international instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

International human rights instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ILO Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Compulsory retirement ages not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Main Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Abolition of Compulsory Age Retirement (Statutory Officeholders) Bill 2001

Date Introduced: 29 August 2001

House: House of Representatives

Portfolio: Attorney-General

Commencement: Subject to two exceptions for provisions which will be repealed if other legislation has commenced before this Bill,1 28 days after Royal Assent.

Purpose

To abolish compulsory age retirement for a range of Commonwealth statutory officeholders.

Background

According to population forecasts, Australia is expected to experience significant demographic changes over the next few decades, particularly a growth in the number of aged persons as a percentage of the general population. The Minister for Aged Care, the Hon. Bronwyn Bishop, recently noted that:2

In 1976 Australia had 1.3 million people over 65 years or 9 per cent of the total population. Today there are 2.3 million people over the age of 65 years or 12 per cent of the total population. By 2016 there will be 3.5 million or 16 per cent; and by 2051, 6.03 million or over 25 per cent - one-quarter of Australia’s population - will be aged over 65.

Among the recommendations made by the OECD to developed nations dealing with the challenges of an ageing population are the removal of early retirement incentives in both public and private sectors, and changing a range of practices that discriminate against mature-age workers, including abolition of compulsory retirement ages.3

All States and Territories in Australia have passed laws outlawing various forms of discrimination including age discrimination.4 Additionally, all States and Territories except the Northern Territory5 have removed compulsory age retirement provisions from their public service legislation.

2 Abolition of Compulsory Age Retirement (Statutory Officeholders) Bill 2001

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

The Commonwealth government has not legislated comprehensively in the field of age discrimination. Its specific discrimination laws are confined to discrimination on the grounds of race, sex and disability.6 In part this reluctance may be attributable to doubts about the Commonwealth’s constitutional power to enact laws specifically prohibiting age discrimination.7 Nevertheless, over the past decade the Commonwealth has slowly been moving towards removing age-based discrimination in employment from Commonwealth laws.

The first step was taken in 1993, when the Industrial Relations Reform Act 1993 was passed. The Act, which came into effect on 30 March 1994, established minimum national standards in relation to the termination of employment, including prohibiting termination of employment on the ground of age.8 This prohibition applies to most employment

relations and not only to workers covered by federal awards.

From 5 December 1999, when the new Public Service Act 1999 commenced operation, compulsory retirement on the ground of age was abolished for Commonwealth public servants employed under that Act.

This Bill proposes also to abolish compulsory age retirement for a range of employees who hold appointments to positions created under a number of Commonwealth laws. Current provisions prevent the appointment of people once they reach a certain age, usually 65, or require them to retire from existing appointments at that age.

The removal of compulsory retirement provisions affecting statutory officeholders has been justified on the basis of the need to retain the expertise and experience of older Australians in the workforce. The Government claims the amendments ‘will assist in changing attitudes about the abilities of older workers and will remove artificial and archaic boundaries between work and retirement.’9

The need for federal action on age discrimination has been noted for some considerable time. As the then Human Rights Commissioner, Chris Sidoti, commented in launching the report Age Matters: A Report on Age Discrimination in July 2000:10

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. …. it’s time to catch up.

Relevant international instruments

Australia is a party to a number of international instruments which are relevant to the issue of age discrimination in general and compulsory age retirement in particular. None expressly prohibits discrimination on the basis of age, although they contain general obligations of non-discrimination, including in relation to employment.

Abolition of Compulsory Age Retirement (Statutory Officeholders) Bill 2001 3

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

International human rights instruments

The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which are the foundational international treaties on human rights, do not specifically refer to 'age' as a ground upon which discrimination is to be prohibited. However, countries are required to respect and guarantee the equal enjoyment of the rights contained in the covenants (including the right to work and the right to appropriate promotion in employment)11 without discrimination of any kind, including on grounds of ‘race, colour, sex, language, religion, political, or other opinion, national or social origin, property, birth or other status’.12 It is likely, although not yet entirely clear, that 'other status' would be taken to include 'age'.

Additionally, Article 26 of the ICCPR requires countries through their laws to:

prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Again, the reference to ‘other status’ may provide a foundation for legislation guaranteeing equal protection of the law to all persons regardless of age.

ILO Conventions

Subclause 2(b) of ILO Recommendation (No.111) Concerning Discrimination in Respect of Employment and Occupation states that national policies should be developed, consistent with national conditions and practice, which prevent discrimination in employment including in relation to security of employment. Subclause 2(c) of this Recommendation specifically provides that "government agencies should apply non-discriminatory employment policies in all their activities." This Recommendation accompanies ILO Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation. Although the definition of 'discrimination' in Convention No 111 does not specifically refer to ‘age’ as a prohibited ground of discrimination, article 5 notes that special measures designed to provide special protection for people by reason of attributes which include 'age' do not constitute discrimination.

Article 5 of ILO Convention (No.158) Concerning Termination of Employment at the Initiative of the Employer13 lists reasons which do not constitute valid reasons for termination of employment. The reasons listed do not, however, include age. Clause 5 of the accompanying recommendation, ILO Recommendation (No.166) Concerning Termination of Employment at the Initiative of the Employer, states that in addition to the grounds listed in article 5 of Convention No 158, "age, subject to national law and practice regarding retirement" should also not constitute a valid reason for termination.

4 Abolition of Compulsory Age Retirement (Statutory Officeholders) Bill 2001

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Compulsory retirement ages not affected

The Bill does not abolish all compulsory retirement ages in Commonwealth legislation.

Compulsory retirement ages will continue to apply to serving Australian Defence Force personnel. The age of retirement varies, and is generally lower for women than for men, and for lower-ranking officers than for more senior officers.14 The Attorney-General justifies the retention of these restrictions on the basis that they ‘are primarily based on considerations of operational effectiveness.’15

Justices of the High Court and other federal courts (such as the Federal Court, the Family Court and the Federal Magistrates’ Court) will continue to be required to retire at the age of 70. This limitation is contained in the Constitution.16

Similarly, under section 201C of the Corporations Act 2001, directors of public companies and their subsidiaries may only hold office until the next Annual General Meeting following the day they turn 72. Persons over 72 may act as directors of public companies and their subsidiaries only if they are appointed by special resolution at an Annual General Meeting of the company, and the notice of the meeting states the person’s age.17

Main Provisions

Currently, a number of Commonwealth laws provide for the appointment of certain officeholders for fixed terms. Many also provide that these terms cannot extend beyond a compulsory retiring age, which is usually 65, but in some cases is 70. The Bill will abolish provisions mandating compulsory retirement at a certain age for the majority of Commonwealth statutory officeholders.

The abolition of compulsory retirement will apply only to appointments made after the Bill commences (item 97). This means that it will not apply to existing statutory officeholders, unless they are appointed for a further term after the Bill commences.

Abolition of Compulsory Age Retirement (Statutory Officeholders) Bill 2001 5

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

The following table lists the statutory officeholders whose compulsory retiring ages will be abolished.

Statutory body Officeholders Compulsory

retiring age Schedule 1 item no

Director of Chemicals Notification and Assessment 65 63

Director of War Graves 65 95

Judge Advocate General Deputy Judge Advocates General 65 38

Native Title Registrar 65 76

Special Prosecutors 65 87, 88

Aboriginal and Torres Strait Islander Commission Chief Executive Officer Director of Evaluation and Audit

General Manager, Torres Strait Regional Authority Indigenous Business Australia Director Indigenous Business Australia General Manager

65 1

2

3

4

5

Administrative Appeals Tribunal Full-time Deputy Presidents who are not Judges

70 6, 7

Administrative Appeals Tribunal Full-time senior members Full-time members

Registrar

65 6, 7

6, 7 8

Australia Council Full-time Chairperson

General Manager

65 9

10

Australian Bureau of Statistics Australian Statistician 65 11

Australian Centre for International Agricultural Research

Director 65 13

Australian Customs Service Chief Executive Officer 65 37

Australian Electoral Commission

Electoral Commissioner Deputy Electoral Commissioner State Australian Electoral Officers

65 35

Australian Film, Television and Radio School Director or Acting Director 70 14

Australian Industrial Registry Industrial Registrar 65 96

6 Abolition of Compulsory Age Retirement (Statutory Officeholders) Bill 2001

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Australian Institute of Aboriginal and Torres Strait Islander Studies

Principal 65 15

Australian Institute of Criminology

Director 65 36

Australian Institute of Family Studies Director 65 56

Australian Institute of Health and Welfare Full-time members 65 16

Australian Institute of Marine Science Director or Acting Director 65 17, 18, 19

Australian Institute of Sport Director 65 28

Australian Maritime College Principal 65 65, 66

Australian National Maritime Museum Director 65 20

Australian Nuclear Science and Technology Organisation Full-Time Board members Executive Director

65 21

22

Australian Safeguards Office Director of Safeguards 65 77

Australian Securities and Investments Commission Members 65 23

Australian Security Intelligence Organisation Director-General 65 25, 26

Australian Sports Commission Executive Director 65 27

Australian Sports Drug Agency Chief Executive 65 29

Australian Taxation Office Commissioner of Taxation Second Commissioners of Taxation 65 90, 91

Australian Tourist Commission Managing Director 65 30, 31

Australian Trade Commission Managing Director Deputy Managing Director 65 32

Australian War Memorial Director 65 33

Australian Wine and Brandy Corporation Members 65 34

Commissioner for Superannuation

Commissioner 65 89

Commonwealth Ombudsman Ombudsman 65 80

Abolition of Compulsory Age Retirement (Statutory Officeholders) Bill 2001 7

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth Scientific Industrial Research Organisation

Chief Executive 65 85

Corporations and Securities Panel Members 65 24

Defence Force Retirement Death Benefits Authority Deputy Chairman Members

Deputies of members

65 39

39 40

Defence Housing Authority Appointed members Managing Director 65 41, 42

43, 44

Development Allowance Authority Development Allowance Authority (single person statutory office)

65 45

Director of Public Prosecutions Director Associate Director

65 46

47

Equal Opportunity for Women in the Workplace Agency Director 65 48

Export Finance and Insurance Corporation Board Appointed members Managing Director

Deputy Managing Director

65 49, 50

51 51

Family Court of Australia Judicial Registrars Chief Executive Officer 65 52, 53, 54

55

Federal Court of Australia Registrar Full-time native title assessors 65 57

58

Great Barrier Reef Marine Park Authority Members 65 59, 60

Health Insurance Commission Managing Director 65 61

High Court of Australia Chief Executive and Principal Registrar 65 62

Inspector-General of Intelligence and Security Inspector-General 65 64

National Capital Authority Full-time members 65 12

National Crime Authority Members 65 67

National Gallery of Australia Director 65 68

National Institute of Occupational Health and Safety Director 65 75

National Library of Australia Director-General 65 71

8 Abolition of Compulsory Age Retirement (Statutory Officeholders) Bill 2001

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

National Museum of Australia Director 65 73

National Occupational Health and Safety Commission Chief Executive Officer 65 74

National Standards Commission

Executive Director 65 72

Office of National Assessments Director-General 65 78, 79

Office of the Privacy Commissioner

Privacy Commissioner 65 82, 83

Officer Parliamentary Counsel First Parliamentary Counsel Second Parliamentary Counsel 65 81

Privacy Advisory Committee Members 65 84

Private Health Insurance Administration Council Chief Executive Officer 65 69, 70

Repatriation Commission Commissioners 65 94

Snowy Mountains Hydro-Electric Authority Commissioner Associate Commissioners

65 86

Veterans' Review Board Full-time members 65 92, 93

Endnotes

1 Items 6, 7 and 8 repeal sections of the Administrative Appeals Tribunal Act 1975. If the Administrative Review Tribunal (Consequential and Transitional Provisions) Bill 2001 has been passed and section 4 has commenced, this Act will already have been repealed, so items 6, 7 and 8 will be redundant. Item 86 repeals subsection 9(4) of the Snowy Mountains Hydro-Electric Power Act 1949. If section 59 of the Snowy Hydro Corporatisation Act 1997 has commenced, this Act will already have been repealed, so item 86 will be redundant.

2 Bronwyn Bishop, ‘Population ageing and the economy’, CEDA Bulletin, July 2001, p. 42.

3 Bronwyn Bishop, ‘Population ageing and the economy’, CEDA Bulletin, July 2001, p. 44.

4 Discrimination Act 1991 (ACT), paragraph 7(1)(ib); Anti-Discrimination Act 1977 (NSW) Part 4G; Anti-Discrimination Act 1992 (NT), paragraph 19(1)(d); Anti-Discrimination Act 1991 (Qld), paragraph 7(1)(f); Equal Opportunity Act 1984 (SA), Part VA; Anti-Discrimination Act 1998 (Tas), paragraph 16(b); Equal Opportunity Act 1995 (Vic), paragraph 6(a); Equal Opportunity Act 1984 (WA), section 4.

Abolition of Compulsory Age Retirement (Statutory Officeholders) Bill 2001 9

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

5 Public Sector Employment and Management Act 1993 (NT), section 36. Tasmania only recently removed its compulsory age retirement provision, with the enactment of the State Service Act 2000.

6 Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992.

7 The Commonwealth has no direct constitutional power to legislate with respect to human rights issues. The external affairs power, section 51(xxix), gives the Commonwealth the ability to implement international treaties and instruments to which Australia is a party. However, there is as yet no international instrument specifically covering age discrimination, although some instruments may be interpreted as including the matter.

8 This was originally contained in section 170DF of the Industrial Relations Act 1988. Currently, this prohibition is contained in paragraph 170CK(2)(f) of the Workplace Relations Act 1996.

9 The Hon. Daryl Williams QC MP, Second reading speech on the Abolition of Compulsory Age Retirement (Statutory Officeholders) Bill 2001, House of Representatives, Hansard, p. 30231, 29 August 2001.

10 Chris Sidoti, Human Rights Commissioner, ‘Launch of Age Matters: A report on Age Discrimination’, Speech to the Council on the Ageing (Australia), Melbourne, 18 July 2000, at http://www.hreoc.gov.au/speeches/human_rights/launch_age_matters.html (6 September 2001).

11 Articles 6 and 7 of the ICESCR.

12 Article 2 of the ICCPR, Article 2 of the ICESCR.

13 The text of this Convention, but not the accompanying recommendation, is annexed as Schedule 10 to the Workplace Relations Act 1996.

14 Regulation 21 and Schedule 3 of the Defence Forces Retirement Benefits Regulations. See section 17 of the Naval Defence Act 1910, section 27 of the Defence Act 1903.

15 The Hon. Daryl Williams QC MP, Second reading speech on the Abolition of Compulsory Age Retirement (Statutory Officeholders) Bill 2001, House of Representatives, Hansard, p. 30231, 29 August 2001.

16 Section 72. Under that section, the Parliament has power to make a law requiring judges of federal courts other than the High Court to retire at an age less than 70, but not to extend the age requirement or abolish it altogether. This can only be done by constitutional referendum.

17 Subsections 201C(8) and (9) of the Corporations Act 2001. It has previously been held that this restriction may be overridden by State or Territory legislation that clearly expresses such an intention. In Castle Hill RSL Ltd v O’Brien (1994) 12 ACLC 984 the Supreme Court of NSW considered section 73A of the Registered Clubs Act 1976 (NSW), which provided that nothing in the Companies Code (a predecessor of the Corporations Act 2001) prevented a person over the age of 72 becoming or being a member of the governing body of a registered club. The Court held that that permission prevailed over the restriction (corresponding to the current section 201C) in the Companies Code. It was not necessary to decide whether State anti-discrimination legislation would have a similar effect.

10 Abolition of Compulsory Age Retirement (Statutory Officeholders) Bill 2001

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

However, because the Corporations Act 2001 is a Commonwealth statute, in contrast to the State Companies Codes, it may be doubted whether that reasoning would be applicable to the current age restriction on directors. Castle Hill RSL Ltd v O’Brien (1994) 12 ACLC 984 concerned a difference between two New South Wales provisions, one applicable to public companies and the other to registered clubs. Now that the public company provision is contained in the Commonwealth Corporations Act 2001, section 109 of the Constitution would apply to any inconsistency. That section provides that Commonwealth laws prevail over inconsistent State laws. However, the operation of section 109 is modified by two provisions of the Corporations Act 2001.

Section 5F of the Corporations Act 2001 permits a State or Territory to declare a matter to be an ‘excluded matter’, in which case all or some specified provisions of the Corporations Act 2001 will not apply to that matter. This power could be used to preserve provisions permitting directors to continue to serve beyond the age of 72.

Section 5G of the Corporations Act 2001 also contains complex rules governing possible inconsistencies between Commonwealth and State or Territory laws.