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 21 AGE DISCRIMINATION BILL 2003—SENATE'S AMENDMENTS

The order of the day having been read for the consideration of the amendments made by the Senate—

Mr Ruddock (Attorney-General) moved—That the amendments be disagreed to.

Debate ensued.

Question—put.

The House divided (the Deputy Speaker, Mr Jenkins, in the Chair)—

AYES, 79

Mr AbbottMrs DraperDr KempMr Scott
Mr AndersonMr DuttonMr P. E. KingMr Secker
Mr AndrenMrs ElsonMrs LeyMr Slipper
Mr K. J. AndrewsMr EntschMr LindsayMr A. D. H. Smith
Mr AnthonyMr FarmerMr LloydMr Somlyay
Fran BaileyMr Forrest*Mr McArthur*Dr Southcott
Mr BairdMrs GallusMr I. E. MacfarlaneDr Stone
Mr BaldwinMs GambaroMr McGauranMr C. P. Thompson
Mr BarresiMrs GashMrs MayMr Ticehurst
Mr BartlettMr GeorgiouMrs MoylanMr Tollner
Mr BillsonMr HaaseMr NairnMr Truss
Mrs B. K. BishopMr HardgraveDr NelsonMr Tuckey
Ms J. I. BishopMr HawkerMr NevilleMr M. A. J. Vaile
Mr CadmanMr HockeyMs PanopoulosMrs D. S. Vale
Mr CameronMrs HullMr PearceMr Wakelin
Mr CausleyMr HuntMr ProsserDr Washer
Mr CioboMr JohnsonMr PyneMr Williams
Mr CobbMr JullMr RandallMr Windsor
Mr CostelloMr KatterMr RuddockMs Worth
Mr DownerJackie KellyMr Schultz

NOES, 59

Mr AdamsMr L. D. T. FergusonMs LivermoreMr Ripoll
Mr AlbaneseMr M. J. FergusonMr McClellandMs Roxon
Mr BeazleyMr FitzgibbonMs MacklinMr Rudd
Mr BevisMs GeorgeMr McLeayMr Sawford
Mr BreretonMr GibbonsMr McMullanMr Sercombe
Ms BurkeMs GillardMr MelhamMr Sidebottom
Mr ByrneMs GriersonMr MossfieldMr S. F. Smith
Ms CorcoranMr GriffinMr MurphyMr Snowdon
Mr CoxMs HallMs O'ByrneMr Swan
Mr CreanMr HattonMr B. P. O'ConnorMr Tanner
Mrs CrosioMs HoareMr G. M. O'ConnorMr K. J. Thomson
Mr Danby*Mrs IrwinMr OrganMs Vamvakinou
Mr EdwardsMs JacksonMs PlibersekMr Wilkie
Mr EmersonMs C. F. KingMr PriceMr Zahra
Mr EvansDr LawrenceMr Quick*

* Tellers

And so it was resolved in the affirmative.

Mr Ruddock presented reasons, which were circulated, and are as follows:

Reasons of the House of Representatives for disagreeing to the amendments of the Senate

Senate Amendments 1, 3 and 6

These amendments propose to extend the concept of unlawful age discrimination to cover an aggrieved person's relative or associate.

It has been suggested these amendments are necessary, for example, to deal with hoteliers who may exclude a person because that person has unruly children. However, the Bill would permit a complaint on behalf of children who were unlawfully excluded from premises on the basis of age.

It has also been suggested these amendments are needed to cover a situation where a person is not employed because he or she may need to take time off to care for an aged relative. It is not appropriate to look to age discrimination legislation to solve issues of family responsibility. Family responsibilities sometimes have no relationship to a person's age. For example, a person may have significant family caring responsibility towards a spouse, sibling or grown up child, age in their 30s or 40s. The issue of
family responsibilities is addressed elsewhere, for example the Sex Discrimination Act 1984, the Workplace Relations Act 1996 and in workplace agreements and awards.

Accordingly, the House of Representatives does not accept these amendments.

Senate Amendment 2

This amendment proposes to extend the concept of `employment' to cover `unpaid work'.

The definition of `employment' in the Bill is essentially the same as in the Disability Discrimination Act 1992and the Sex Discrimination Act 1984. These definitions are consistent with the usual understanding of the term `employment', which is generally taken to mean work done for remuneration.

Extending the provisions to the voluntary sector could have an adverse impact on voluntary arrangements, as the Government's Information Paperpointed out (paragraph 4.3, page 14-15).

Accordingly, the House of Representatives does not accept this amendment.

Senate Amendment 4

This amendment proposes to remove clause 6 of the Bill. Clause 6 addresses the potential overlap between discrimination based on age and that based on disability.

It has been suggested that the Human Rights and Equal Opportunity Commission is already well enough equipped to deal with any overlap between these two forms of discrimination. However, the law should deal clearly with possible overlap between different areas of discrimination, and not leave `grey' areas.

The purpose of section 6 is to make clear that, where an act constitutes age and disability discrimination, it must be dealt with under the Disability Discrimination Act 1992. It would be unreasonable to leave a person unsure as to which Act applies.

Accordingly, the House of Representatives does not accept this amendment.

Senate Amendment 5

This amendment proposes a new clause 14.

One aspect of this amendment would be to extend the concept of unlawful age discrimination to cover an aggrieved person's relative or associate. This is rejected for the reasons stated above in relation to Senate amendments 1, 3 and 6.

The other aspect of this amendment would be to introduce age-based harassment as a ground of direct discrimination. The absence of a specific reference in the Bill does not mean that a complaint of age-based harassment cannot be brought. Harassment is covered where it amounts to direct discrimination. In particular, the Bill prohibits discrimination on the ground of age in the workplace. Specific allegations of discriminatory harassment will turn on the circumstances of the particular case. That is appropriate. States and Territories generally have provisions on sexual harassment but not age harassment, consistent with the approach in this Bill, as the Government's Information Paperpointed out (paragraph 8.1, page 38).

Accordingly, the House of Representatives does not accept this amendment.

Senate Amendment 7

This amendment proposes to remove the `dominant reason' test in clause 16.

This amendment is not necessary or appropriate. In the area of age discrimination, action should be unlawful only where age is the dominant consideration. It is critical that the legislation not restrict employment opportunities for older Australians by imposing unnecessary costs and inflexibility on employers acting in good faith.

The `dominant reason' test will be most appropriate to promote the attitudinal change it seeks to achieve. The Bill, including clause 16, is designed to send a clear message that age stereotyping is unacceptable, without suggesting that age can never be a relevant consideration.

Accordingly, the House of Representatives does not accept this amendment.

Senate Amendments 8 and 9

These amendments are to the current exemption covering acts of `positive' discrimination. The suggestion is that the exemption should cover acts only where they are intended and reasonably required to meet a need of, or reduce a disadvantage experienced by, people of a particular age.

These amendments are not necessary. The clause is designed to ensure that the exemption only covers those acts which are consistent with the purposes of the legislation. In other words, if the positive
discrimination lacks a reasonable basis, it will not be authorised by the Bill. The existing wording is preferable because it ensures clear scope for positive discrimination in appropriate cases. That is, where positive discrimination is intended to have appropriate beneficial effects and is consistent with the purposes of the Act, it should not be vulnerable to invalidity because a third party considers the positive discrimination was not `required'.

Accordingly, the House of Representatives does not accept these amendments.

On the motion of Mr Ruddock, the reasons were adopted.