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Age Discrimination Amendment Bill 2006

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2004-2005-2006

 

 

 

 

The Parliament of the Commonwealth of Australia

 

 

 

 

 

 

 

Senate

 

 

 

 

 

 

 

Age Discrimination Amendment Bill 2006

 

 

 

 

 

 

Revised Explanatory Memorandum

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Philip Ruddock MP)

 

 

 

This memorandum takes account of amendments made by

the House of Representatives to the Bill as introduced



Age Discrimination Amendment Bill 2006

 

Outline

 

The purpose of this Bill is to amend the Age Discrimination Act 2004 (‘the Act’) in order to:

 

·         provide exemptions for a limited number of Commonwealth Acts and regulations following the expiry of the temporary exemption in subsection 39(2) of the Act.  That subsection provided for an exemption of all Commonwealth Acts and regulations for two years from the commencement of the Act.  The exemption expires on 23 June 2006;



·         provide exemptions for a limited number of other legislative instruments, schemes and programs;



·         clarify the application of some existing exemptions of the Act; and



·         repeal an exemption for regulations no longer in force.

 

 

Financial impact statement

 

The Bill is not expected to have any financial impact.

 



Notes on clauses

 

Section 1: Short Title

 

1.       Section 1 provides that the Bill, once enacted, may be cited as the Age Discrimination Amendment Act 2006 .

 

Section 2: Commencement

 

2.       Section 2 provides that the Bill will commence on the day it receives Royal Assent.

 

Section 3: Schedule(s)

 

3.       Section 3 provides that each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.  Schedule 1 amends the Age Discrimination Act 2004 .

 

Schedule 1 - Amendment of the Age Discrimination Act 2004

 

NOTES ON ITEMS

 

Items 1 and 2

 

4.       Item 1 renames the existing Example after paragraph 33(a) of the Act as Example 1 to allow for the insertion of an additional example by item 2.

 

5.       Item 2 inserts Example 2 after paragraph 33(a) of the Act.  This example is inserted to better illustrate the scope of the paragraph, to make it clear that a bona fide benefit, as an aspect of positive discrimination, includes the provision of an opportunity such as a scholarship that is open to a particular age group, or a competition for a particular age group.

 

6.       An illustration of a benefit within Example 2 is a writing competition for school students.  While such a competition may be restricted to an age range (perhaps students in a particular year of schooling), this kind of restriction is not inconsistent with the policy of the Act.  Children are not expected to compete against older children or adults in these circumstances.  Such competitions fall within the objects of the Act, in particular subsection 3(c).

 

7.       Another example is the Australian Youth Ambassadors for Development Program, which is administered by AusAID.  The program, which is open to Australians between the ages of 18-30, was specifically set up as a youth volunteer program, one of the objectives of which was to provide opportunities for young Australians to volunteer overseas.  Without age limits, the program would lose its uniqueness and duplicate other overseas volunteer programs supported by the Commonwealth.

 

Items 3 and 4

 

8.       Age-based criteria are contained in some Commonwealth laws regulating superannuation to give effect to particular policy objectives.  The purpose of superannuation, and Commonwealth superannuation policy, is to promote better incomes in retirement, to ensure that superannuation is appropriately used for retirement purposes and that the taxation concessions provided to superannuation are not abused.  These purposes are reflected in the requirements in superannuation laws, for example, about the minimum age at which superannuation can be accessed and the maximum age at which superannuation contributions can continue to be made.  Adjustments to the age provisions in superannuation laws are made as working and retirement patterns change.



9.       Item 3 clarifies the scope of paragraph 38(1)(a) of the Act, to make it clear that acts done in direct compliance with provisions that relate to superannuation, but are part of an Act that generally deals with some other subject matter, are exempt.

 

10.   For example, the Federal Court of Australia Act 1976 contains two sections (18K and 37I) that deal with the retirement of office holders on the ground of incapacity and make reference to retirement age for superannuation purposes.  The requirements in these sections are consistent with similar provisions in the Superannuation Act 1976 and the Superannuation Act 1990 .

 

11.   It is not clear whether the Federal Court of Australia Act as a whole would be ‘a Commonwealth Act relating to superannuation’.  Item 3 clarifies the exemption conferred by 38(1)(a) of the Act, by specifically referring to provisions of Commonwealth Acts, as well as Acts as a whole.

 

12.   Item 4 expands paragraph 38(1)(b) of the Act to exempt acts done in direct compliance with a regulation or other instrument (or part thereof) that relates to superannuation, whether or not the Act that the regulation or instrument is made under is ‘a Commonwealth Act relating to superannuation’.

 

13.   As with Item 3, this amendment is designed to deal with laws that include provisions relating to superannuation but generally deal with some other subject matter.  For example, the Family Law (Superannuation) Regulations 2001 are made under the Family Law Act 1975 .  While Part VIIIB of that Act deals with superannuation, it is not clear whether the Family Law Act as a whole can be described as ‘a Commonwealth Act relating to superannuation’, and hence whether the Family Law (Superannuation) Regulations are made under such an Act.

 

Item 5

 

14.   This item inserts a new subsection 39(1A) into the Act.  The subsection provides for the inclusion of a new schedule of exemptions (Schedule 2) that identifies provisions of Acts, regulations and instruments.  Acts done in direct compliance with those provisions are exempt.

 

15.    The effect of Schedule 2 will be the same as Schedule 1.  However, whereas Schedule 1 refers to entire Acts, regulations and instruments, the contents of Schedule 2 will refer to specific provisions.

 

16.     Provisions are included in Schedule 2 where an exemption is warranted, but where it is not necessary or appropriate to exempt the complete Act, regulation or instrument that contains the provision.  Relevant provisions for which an exemption is provided are explained in Item 15.

 

Item 6

 

17.   This item inserts a new subsection 39(9) into the Act to provide an exemption relating to the service of documents.  The intention of the subsection is to allow other Commonwealth laws to restrict the service of documents to a person apparently of or above a particular age, most commonly 16 years.

 

18.   In general, rules of Court provide that documents can only be served on a corporation or other organisation by leaving them with a person apparently of or above the age of 16 years.  This limitation applying to the service of documents is intended to ensure that the recipient has sufficient maturity to understand the nature of the document.

 

19.   The rationale behind this limitation has been adopted in various Commonwealth laws.  For example, Regulation 39 of the Fisheries Management Regulations 1992 allows an officer to serve an infringement notice on a body corporate by giving it to an employee who is, or whom the officer reasonably believes is, above the age of 16.

 

Item 7

 

20.   This item inserts a new subsection 41(2AA) into the Act to provide an exemption for acts done in direct compliance with certain provisions of the Farm Household Support Act 1992 (FHS Act).

 

21.   Section 8B of the FHS Act requires that an individual be 18 years of age to access the Farm Help program.  This is a minimum integrity measure to ensure the program, which is intended to assist non-viable farmers make adjustments, is appropriately targeted at farmers with a strong, long-term attachment to the land.

 

22.   Section 41 of the Act already contains exemptions relating to social security legislation.  Farm Help was introduced to provide farmers with access to an income safety net equivalent to mainstream welfare, whilst taking into account the special circumstances associated with farming which may prevent farmers from accessing mainstream social security payments.  For children under 18 years of age, Youth Allowance provides an appropriate and alternative form of income support that takes into account the special circumstances of farm families.

 

23.   Sections 24A and 24B of the FHS Act link the rates of Exceptional Circumstances Relief Payment and Farm Help income support, respectively, to rates of payment of Youth Allowance or Newstart made under the Social Security Act 1991 .  These sections ensure that farmers receive payment at the same rates as individuals of the same age that are accessing mainstream welfare.

 

24.   The schemes formulated under sections 52A and 52B of the FHS Act (the Farm Help Re-establishment Grant Scheme 1997 and the Farm Help Advice and Training Scheme 1997 , respectively) both apply a minimum age limit of 18 years, for the policy reasons applying to section 8B of the FHS Act.

 

Item 8



25.   This item inserts a new subsection 41(6) into the Act, providing an exemption for acts done in direct compliance with the Veterans’ Children Education Scheme (VCES).  VCES is made under section 117 of the Veterans’ Entitlements Act 1986 and provides guidance, counselling and financial assistance to eligible children of veterans or Defence Force members.

 

26.   The Veterans’ Entitlements Act 1986 , for which an exemption already exists, defines a ‘child’ as being a person who is under the age of 16 or a person under the age of 25 who is undertaking full-time study.

 

27.   The requirements of the VCES reflect that definition.  Students must meet the eligibility criteria before 25 years of age to receive payments (which can then continue until the completion of their course of study).  Also, while a veteran may claim benefits for a child up to the age of 25, a student aged 16 or over may make the claim in his or her own right.

 

28.    The new subsection is to provide certainty that the VCES is covered by an exemption.  This is similar to many of the existing subsections in section 41 of the Act, which provide exemptions for particular schemes and determinations made under the legislation exempted in subsection 41(1).

 

Item 9

 

29.   This item inserts a new section 41A into the Act.  The section allows the use of age based criteria in the delivery of exempted employment programs.  The exemption recognises that there will be situations where there are sound policy grounds for using age based distinctions to determine eligibility for employment programs.  Employment programs are developed to address particular labour market or policy issues.  The exemption allows programs to be designed in the most appropriate way to meet the needs and circumstances of different groups in the community.  These needs and circumstances may vary across different ages, but particular problems are often faced by young people and mature age people. 

 

30.   For example, young people generally experience barriers to employment due to their lack of work experience, training or skills.  A program that provides young people with opportunities for training or work experience would fall within this exemption.  Such programs may not amount to positive discrimination under section 33 of the Act, as the program arguably may not meet a need that is specific to persons of a particular age.

 

31.   Section 41A will ensure that the actions of a person or body supplying services in relation to, or carrying out, an exempted employment program are not unlawful when they are acting in accordance with the program.  The exemption will not allow age discrimination in the administration of an exempt employment program where the less favourable treatment is not in accordance with the program.  For example, once a person has been admitted to a program, the person must not be discriminated against in the provision of the service.

 

32.   An exempted employment program is defined in subsection 41A(3).  Paragraph 41A(3)(a) ensures the definition covers programs delivered by the Commonwealth Government, or on its behalf by service providers.

 

33.   Paragraph 41A(3)(b) provides that, to be an exempted employment program, a program must be aimed at improving employment opportunities or workforce participation.

 

34.   Paragraph 41A(3)(c) contains five criteria that allow appropriate targeting of employment programs, one of which must be fulfilled.

 

i)          When one of the intentions of an employment program is to address a need of people of a particular age, that program is exempted.  People at particular ages may have a need that is different or more acute than other age groups and some employment programs are designed to address these needs.  For example, young people may have a greater need for work experience to help them find a job and a program providing work experience and training for a particular cohort of youth falls into this category.

 

However, the fact that the need may also arise in another age group falling outside the age range of a program does not make that program unlawful.  There may be specific policy reasons why an employment program is targeted towards a particular age group. 

 

ii)         Employment programs that aim to alleviate disadvantage of particular age groups are exempt.  Some programs address problems faced by particular age groups that may limit opportunities, access to employment or ability to participate in the workforce.

 

The program is not made unlawful when the disadvantage is also experienced by an age group outside the age range of a program, as there may be specific policy reasons for targeting a program at a particular age group. 

 

iii)        Employment programs requiring contracts that exclude minors are exempt.  Some employment programs require participants to enter into legally binding contracts.  This exemption is based on grounds of the legal incapacity of minors and other policy considerations including the desirability of a uniform national Commonwealth program.  It is a policy aim to protect young people under the age of 18 years from entering into contractual arrangements which may result in legal problems for them. 

 

iv)        Eligibility for many employment programs is based on receipt of a particular Commonwealth benefit or allowance type.  This ensures people on particular benefits or allowances are able to access appropriate employment programs.  This subparagraph ensures that employment programs can be delivered based on receipt of a benefit or allowance, regardless of whether age is one of the criteria for receiving the relevant benefit or allowance. 

 

v)         This subparagraph provides an exemption for programs which exclude people on a particular allowance or benefit type from a program, or that is limited to people not on eligible allowances or benefits.  The exclusion from the program is not directly based on age, even though age may be an eligibility, or ineligibility, criteria for the benefit or allowance.  For example, for labour market reasons a program may be delivered solely to people over 50 years who are not in receipt of a benefit or allowance, to help increase their workforce participation.

 

Item 10

 

35.   This item inserts four new items relating to civil aviation into Schedule 1 of the Act.  These legislative instruments contain age specific provisions that implement or reflect the international standards for aviation safety and practices prescribed under the Convention on International Civil Aviation .  The Convention deals with matters such as minimum ages for obtaining licences and the testing of pilots’ medical fitness.  Substantial compliance with the Convention is necessary to ensure that Australia’s regulatory regime is accepted internationally.

 

36.   Where the Australian provision differs from the international standard, this is based on industry consultation .

 

Item 11

 

37.   This item inserts two new items into Schedule 1 of the Act relating to the national classification scheme for films, computer games and literature.  The Classification (Publications, Films and Computer Games) Act 1995 (Classification Act) is already listed in Schedule 1 of the Act.  However, because the classification scheme is a co-operative scheme with the States and Territories, the Classification Act does not include the detail of the classification system.

 

38.   Together, the National Classification Code and the guidelines made under section 12 of the Classification Act contain the criteria that must be applied in making classification decisions.  They establish, for example, the acceptable content for ‘G’-rated films.  Inclusion of these instruments in Schedule 1 will provide certainty that the national classification scheme is not in conflict with the Act.

 

Item 12

 

39.   This item inserts a new item into Schedule 1 of the Act to provide an exemption for acts done in direct compliance with determinations made under section 58B of the Defence Act 1903 .  These determinations deal with the pay and conditions of members of the Australian Defence Force.

 

40.   The determinations currently in force contain several clauses that do not recognise a member’s dependant child beyond a certain age for the purpose of receiving benefits (18 or 21 in different circumstances).  These determinations limit the costs associated with adult children who choose to accompany a member on posting, or to live in a home for which the member receives assistance from the Australian Defence Force.

 

Item 13

 

41.   This item inserts a new item into Schedule 1 of the Act to provide an exemption for acts done in direct compliance with certain Marine Orders made under the Navigation Act 1912 (Parts 3, 6, 9, 14, 32, 51 and 53).

 

42.   The titles of these Orders are as follows:

·          Part 3: Seagoing Qualifications

·          Part 6: Marine Radio Qualifications

·          Part 9: Health - Medical Fitness

·          Part 14: Accommodation

·          Part 32: Cargo Handling Equipment

·          Part 51: Fishing Vessels

·          Part 53: Employment of Crews

 

43.   These Orders include age specific criteria.  Most of them set minimum ages for obtaining certain qualifications or for employment on vessels.  Part 9 establishes differing medical fitness requirements, and Part 14 contains rules about sleeping quarters on vessels.  Each of the listed Parts substantially reflects or implements existing or anticipated international obligations.

 

Item 14



44.   This item removes the Passports Regulations 1939 from Schedule 1 of the Act.  The Regulations are no longer in force, having been replaced by the Australian Passports Determination 2005 .  Parts of the Determination are included in the proposed new Schedule 2.

 

Item 15 

 

45.   This item inserts a new Schedule 2 at the end of the Act.  This Schedule sets out the list of laws mentioned in the proposed subsection 39(1A). Anything done by a person in direct compliance with the provisions of laws listed in this Schedule is not made unlawful by Part 4 of the Act.  Each item in Schedule 2 is discussed below.

 

Australian Meat and Live-stock Industry (Repeals and Consequential Provisions) Act 1997 , items 38 and 39 of Schedule 5

 

46.   See the discussion below of the Long Service Leave (Commonwealth Employees) Act 1976 .

 

Australian Passports Act 2005 , section 11

 

47.   Section 11 allows the Minister for Foreign Affairs to refuse to issue a passport to a child if conditions relating to parental consent are not met. This provides an essential safeguard against the abduction of a child by one parent without the other parent’s knowledge, as well as protecting the rights of parents to not be separated from their child without consent or in the absence of a court order.



Australian Passports Determination 2005 , section 5.1 and Schedule 4

 

48.   This item effectively replaces the exemption for the Passports Regulations 1939 (item 38 of Schedule 1 of the Act), which are no longer in force.

 

49.   Section 5.1 determines the period of validity for Australian passports.  Under the section, an ordinary adult passport is issued for a period of ten years.  A person aged 75 or over can choose to apply for a passport of five or ten years validity, whichever suits their needs. The option for a five-year passport allows older Australians a less expensive travel document which is useful for those on low incomes, such as pensioners, or those who believe they will not be travelling overseas more than five years into the future.

 

50.   Section 5.1 also provides that passports issued to children are only valid for five years. This shorter period is desirable as a child’s appearance can change substantially as the child grows older and the measure seeks to ensure that there will always be sufficient resemblance between the child and their passport photo. This facilitates border control.

 

51.   Schedule 4 sets the fees payable for passport applications.  Different fees for five-year children’s and seniors’ passports reflect the shorter validity period.

 

Horticulture Marketing and Research and Development Services (Repeals and Consequential Provisions) Act 2000 , sections 37 and 38

 

52.   See the discussion below of the Long Service Leave (Commonwealth Employees) Act 1976 .

 

Long Service Leave (Commonwealth Employees) Act 1976, section 17

 

53.   Section 17 treats people with less than 10 years service as a Commonwealth employee differently, depending on whether they have attained the minimum retiring age when ceasing employment.  Those who have reached the minimum retiring age are entitled to pro rata long service leave or payment in lieu.

 

54.    The Australian Meat and Live-stock Industry (Repeals and Consequential Provisions) Act 1997 , Horticulture Marketing and Research and Development Services (Repeals and Consequential Provisions) Act 2000 and Pig Industry Act 2001 all contain provisions that preserve the long service leave entitlements of former Commonwealth employees who were moved to the private sector.  The provisions of these Acts listed in Schedule 2 are modelled on section 17 of the Long Service Leave (Commonwealth Employees) Act and require an exemption for the same reason.

 

Medical Indemnity (Prudential Supervision and Product Standards) Act 2003 , Part 3

Medical Indemnity (Prudential Supervision and Product Standards) Regulations 2003, Part 3




55.   These items provide an exemption for part of a package of measures that provide run-off cover to retired medical practitioners.  A person who has permanently ceased medical practice aged more than 65 years is eligible for an offer of run-off cover from a medical indemnity insurer at no cost.  A person who has permanently ceased practice aged less than 65 years may (if they do not fall within any of the other categories of people eligible for free cover) be offered run-off cover by an insurer at cost price.  These practitioners will become eligible for free cover after three years or upon turning 65.

 

Navigation Act 1912, section 48A

 

56.   Section 48A provides that it is an offence to engage a person for service at sea in any capacity unless that person has attained the age prescribed in respect of that capacity.



57.   A minimum age of 16 (with some exceptions for family-operated or training vessels) is prescribed by the Marine Orders Part 53 , which are proposed for inclusion in Schedule 1 of the Act (see the discussion above of Item 13).

 

Pig Industry Act 2001 , sections 32 and 33

 

58.   These provisions are exempted on the same basis as section 17 of the Long Service Leave (Commonwealth Employees) Act 1976 (see paragraph 53).

 

Private Health Insurance Incentives Act 1998, Parts 2 and 5

 

59.   Parts 2 and 5 provide for an increased private health insurance rebate for people aged 65-69 years (35% rebate) and 70 years and over (40% rebate).  The increased rebate has been available since April 2005.

 

Workplace Relations Regulations 2006 , regulations 8.10, 9.1, 9.5 and 9.20

 

60.   Regulation 8.10 establishes a minimum age of 18 years of age for a person to be appointed as a bargaining agent.  This is consistent with the requirement in section 340 of the Workplace Relations Act 1996 that a workplace agreement not be approved by a person under the age of 18 without the consent of an appropriate adult, such as a parent or guardian.

 

61.   Similarly, each of the other regulations establishes a minimum age of 18 years for a person to undertake a particular role in workplace bargaining representing the interests of others:

 

·          acting as an agent for the purposes of initiating a bargaining period (Regulation 9.1)

·          acting as an agent for the purposes of applying for a secret ballot order (Regulation 9.5), and

·          acting as a scrutineer to oversee protected action ballots (Regulation 9.20)

 

62.   Exempting these additional regulations, which are designed to be consistent with the generally accepted legal age of maturity, is consistent with the proposed exemption of Regulation 8.10.