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Monday, 3 November 2003
Page: 21793

Mr McCLELLAND (6:33 PM) —I acknowledge the presence of the Attorney-General in the chamber and I thank him for his courtesy. Age is very much a defining feature of who we are. Our chronology can have an enormous bearing on many of our characteristics. Through the various stages in our lives—from infancy to childhood, adolescence to adulthood and middle age—our physical and mental qualities change with time. Age does, at certain stages in our life, also demand special treatment, recognition and sometimes protection. We would all accept that. It is frequently said that how a nation treats its young and its elderly is an indication of how civilised it is, and we accept that proposition.

Many current stereotypes about age-related characteristics are wrong, misconceived and hurtful. Notions of younger adults being irresponsible and older persons being inflexible, hard to train and not adaptive are frequently generalisations that have no reflection of reality and often deprive both industry and the individual of considerable opportunity. Our economics and our advancement demand that the attitudes and myths that perpetuate negative age discrimination are shattered. It is in this task that the government should lead, and we note that the substance of the Age Discrimination Bill 2003, albeit with some changes, is supported by the opposition. All states and territories have already outlawed age discrimination and, while the federal government is the last to act, we believe that late is better than not at all.

Law reform is a powerful tool that can do much to eliminate prejudices. In itself, it can reflect community aspirations that help mould conduct so that those aspirations become standards. A generation ago, laws prohibiting sex, race and other ill-founded bases for discrimination wiped out many stereotypes that were largely unquestioned. One only needs to go back a little over two decades to be in an era where certain jobs were reserved for males and others for females. As late as 1980, a woman called Deborah Wardley was still involved in a fight that went all the way to the High Court to be allowed to pilot a commercial aircraft. She won that fight. Right up until the 1980s, job advertisements were segregated into women and girls, and men and boys. In the former category were positions like secretaries, sales assistants and nurses, and in the latter category were truck drivers, carpenters and managers.

The move to eradicate age discrimination has come more recently, and there is still much to do. Until relatively recently, it was not uncommon for employers to set baseless age limitations for jobs. In our newspapers, it was easy to find employers expressly stating in job advertisements that applicants be under 40 or 45 years of age. These sorts of limitations had no rational basis, and they not only excluded worthy applicants but reinforced the message that age would dictate a person's ability to perform certain work when such an assumption was nothing short of wrong and destructive of both the individual and the corporate talent.

Some of the quotes found in the Human Rights and Equal Opportunity Commission's excellent report into age discrimination, entitled Age Matters, tell of the ageism in contemporary Australia. For example, one quote from a person stated:

I was registered for unemployment and when I asked why no jobs had been referred, I was told by a CES staff member that I was past my use by date ...

Later, the report gives an account of a male teacher who applied for a subject coordinator's position. He was asked why he did not seek the position 20 years earlier. In respect of accommodation, the report reproduces an extract from the Youth Affairs Network of Queensland, which says:

There is no legal reason that people under 18 years of age cannot sign a lease, however this is still cited as a reason for them not being leased flats, units and houses.

Age discrimination persists as a negative force that requires appropriate government attention and, as I said, that is supported by the opposition. In November 2001, the Human Rights Commissioner, Dr Sev Ozdowski, wrote:

Age discrimination complaints made to the Human Rights and Equal Opportunity Commission between 1999-2000 and 2000-2001 have tripled. More than 200 people phoned the complaints information line after being deemed `too old' for a position.

Under New South Wales laws, age discrimination was the first most common ground for complaints in 2000-01 to the New South Wales Anti-Discrimination Board, making up nine per cent of complaints in total.

Not only are these views that promote age discrimination an affront to the dignity of older persons but also they impair the efficient functioning of the labour market. On a macro level, an ageing population has serious economic consequences for the Australian economy. Over the next 20 years, the growth in the Australian population of labour force age will be 14 per cent, but the number of people between 55 and 64 years of age is expected to increase by over 50 per cent. On an international scale, participation in the Australian labour market stands at relatively high rates for young workers but low rates for older workers. For older Australians, the labour market is not serving them well. This proportion is exemplified in the disappointing reality that Australia has the highest unemployment rate for men aged 55 to 59 of any country in the OECD. So there is a real cultural barrier to be overcome in that respect alone.

What these statistics bear out is that the case for human rights goes beyond legal niceties. Human rights do more than achieve the noble objective of upholding the dignity of individuals. Respect for fundamental human rights pays significant economic and social dividends as well. Recalling the comparison to sex discrimination, the rise in female participation in our labour force has been a significant contributor to our rising economic prosperity. Not only can women now fulfil their potential and aspirations but also industry has an enlarged pool of skilled labour. The higher labour participation rate of women significantly boosts the gross domestic product of Australia.

Demographers have charted how our growing life expectancy and declining birth rates are changing the population profile. As a nation, our average age is increasing. It is predicted that, between 2011 and 2031, the number of people aged over 65 in Australia will grow from three million to five million. Over this period, the number of persons over 85 years of age will almost double, to 1.1 million. This will be in most of our lifetimes. Perhaps more dramatic than these figures is the slowdown in the rate of work force growth. Between 1978 and 1988, the work force grew by 23.5 per cent. In the succeeding decade, the rate fell to 17.1 per cent. Over the decade 2000-10, the rate will dwindle to just 13.8 per cent. So, from 1978 to 2010, it will go from 23.5 per cent down to 13.8 per cent—a significant decline.

These trends point to a significant shift in the ratio of those who work to those who are in retirement. This will put an increasing strain on the economy, and it will be necessary to find the resources to fund retirement incomes and deliver wealth and fundamental services to other segments of the population. However, as pointed out in the bill's explanatory memorandum, an increase in 10 percentage points in the work force participation of Australians aged 55 to 70 years of age would largely cancel out any negative effects of an ageing population. It is therefore in everyone's interests to seek to increase labour force participation amongst older workers, not by way of necessity but by way of creating opportunities equally for senior Australians as for young workers.

Of the various means pointed towards this goal, such as retraining programs for older workers, altered retirement income policies and so on, it remains essential that we as a society break down those views that perpetuate age discrimination and promote a culture that effectively locks people out of those opportunities which benefit not only themselves but, as I have said, the nation as a whole. On this front, Labor welcomes federal age discrimination legislation, just as there already exists complementary state, territory and federal antidiscrimination legislation in respect of sex, race, disability and other grounds. The addition of federal legislative protections against age discrimination will signify the complete and comprehensive rejection of negative age discrimination by all Australian governments.

However, there is considerable scope for the government, we believe, to improve in respect of this bill, and I will address those areas. Labor hopes that the government will indeed accept our amendments that will, firstly, extend the operation of the bill to relatives and associates. These will be debated, I understand, at a later stage in the Main Committee. The prohibition of age discrimination to a person's relatives and associates was considered by the government, but we understand it was rejected. The government's information paper on the bill contained a passage that said it would be inappropriate. But, regrettably, we fear that, in the rejection of that proposal, perhaps the government has been overly influenced by employer organisations, or at least certain ones, without regard to the broader interests of the community.

It is not difficult to envisage, for instance, where discrimination on the basis of the age of a relative or an associate may arise—for example, in an employment situation where an employer discriminates against an employee who cares for an aged relative, because of an apprehension by the employer that the employee will need time off to attend to the needs of that relative. Another situation might be that of a hotelier not allowing parents with young children to stay as guests, because of the hotelier's anticipation of unruly behaviour by children. Labor takes the view that the Commonwealth legislation should set the standards and not merely provide the lowest standards of protection. I might add, Mr Deputy Speaker Price, that neither you nor I would have unruly or difficult children. I say that with my fingers firmly crossed! But Labor takes the view that the legislation should set the standards and not merely provide the lowest standards of protection. We believe that the government's capitulation, perhaps, to some of those more limited interests has impeded what would be effective operation in that area.

We believe that another inadequacy with this legislation is the government's choice to water down the test for whether particular conduct constitutes age discrimination, by requiring that age discrimination be the dominant reason for the conduct complained about. This is a significant issue; it is an issue of substance. The requirement that age discrimination be the dominant reason is a much harder test than that which applies, for instance, under the various state and territory laws dealing with age discrimination. Generally in antidiscrimination laws the relevant test is met even if the discriminatory action is only one of several reasons for the conduct that is the ground for the complaint. The provision in the New South Wales Anti-Discrimination Act is a good example. Section 4A provides:


(a) an act is done for two or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

So probably the most significant amendment we will be moving seeks to have included in the act a test that age discrimination is one or more of the reasons, as opposed to the dominant reason, for the discrimination.

The government's reasons for the more difficult threshold to maintain the complaint are, we believe, not based on sound reasoning and, indeed, are at odds with the government's rationale for bringing forward the legislation as a whole. We note that the government's case for introducing the legislation is said to be as follows:

If the status quo is retained, older Australians and younger Australians would bear the cost of ongoing discrimination, suffering the effects of marginalisation, unemployment or under-employ-ment, damage to self-esteem, reduced social participation and reduced access to goods and services. The community would also lose the benefits of diverse contributions to society by people of different age groups.

Labor agrees with those sentiments entirely. In weighing up the case for legislative reform in this area, the government reasoned:

The self-regulatory measures suggested in Option 2 are not appropriate for the problem of age discrimination as they do not provide an adequate remedy. Legislative mechanisms for providing protection against age discrimination would appear to be the optimum way of dealing with the problem.

Similarly, simply retaining the status quo, as suggested in Option 1, is not an appropriate option in this case. As noted above, there are gaps in the existing coverage of Commonwealth, State and Territory laws which would not be rectified by simply retaining the status quo.

Again, we consider that the government has advanced a compelling case for legislating to prohibit age discrimination at a Commonwealth level, and we agree with the argument it has advanced. But, in the execution of the legislation, the government has softened unnecessarily the impact in these important areas.

Age based harassment is the other area that we have concerns about in this legislation. The government's position on age based harassment mirrors its position on relatives and associates. The government raised the issue in its information paper but, after noting that only the Northern Territory specifically banned age based harassment, the government succumbed to business concerns over the issue and declined to ban age based harassment in the legislation. Age based harassment is a real phenomenon that should be stopped. No more should young apprentices and junior staff be bullied and treated in a demeaning manner, and no longer should older Australians be subjected to derogatory taunts.

With the three amendments which we will be proposing at the detailed stages of the debate, we believe the operation of the Commonwealth's age discrimination legislation will go from being perhaps the weakest in the land to being on par with the best. As amended by those proposals, we consider that the proposed legislation will be better able to fulfil its mission—one on which the government and the opposition agree—to protect Australians from negative age discrimination and to have a significant benefit in promoting tolerance and a culture of utilising our nation's best talent base, irrespective of a person's age.

On the issue of exemptions in the legislation, Labor will reserve our judgment until the operation of the legislation has been considered in time. In this sense, we believe it is vital that the Human Rights and Equal Opportunity Commission have sufficient funding and resources to make that assessment on the operation of the legislation. As I have pointed out, having these measures operating effectively has not only social benefits but also economic benefits, and we believe that that should be a consideration in funding the important work done by the Human Rights and Equal Opportunity Commission. For this to happen, there must of course be no more cuts to the commission's funding, and the government must respect the commission's independence and integrity and let it get on with this work in its respected and objective way.

With Labor's package of amendments, we believe the bill will become balanced, effective and should serve the purpose that it is designed to achieve. We are all susceptible to the effects of age, which regrettably we start to feel. They are something beyond our control. What is in our control, however, is the power to break down the stereotypes and prejudices that have held back those in our society who have every ability to make a contribution but have been dismissed simply because of their age. In conclusion, I move the second reading amendment that has been circulated in my name:

That all words after “That” be omitted with a view to substituting the following words:

“whilst not declining to give the bill a second reading, the House condemns the Government for failing to ensure that federal age discrimination legislation contains the best standards of protection of older Australians, a failure which is consistent with its neglect of the human rights of all Australians, as evidenced by its introduction of legislation to weaken the Human Rights and Equal Opportunity Commission and other actions to wind back protections for Australian citizens”.

The DEPUTY SPEAKER (Hon. L.R.S. Price)—Is the amendment seconded?

Mr Edwards —I second the amendment.

Debate (on motion by Dr Stone) adjourned.