Age Discrimination

Last Updated 17 August 2021

The objects of the Age Discrimination Act 2004 (Cth) (Age Discrimination Act) are:

to eliminate, as far as possible, discrimination against persons on the ground of age in the areas of work, education, access to premises, the provision of goods, services and facilities, accommodation, the disposal of land, the administration of Commonwealth laws and programs and requests for information
to ensure, as far as practicable, that everyone has the same rights to equality before the law, regardless of age, as the rest of the community
to allow appropriate benefits and other assistance to be given to people of a certain age, particularly younger and older persons, in recognition of their particular circumstances
to promote recognition and acceptance within the community of the principle that people of all ages have the same fundamental rights
to respond to demographic change by removing barriers to older people participating in society, particularly in the workforce and changing negative stereotypes about older people (s 3 Age Discrimination Act).

Discrimination on the ground of age can be direct or indirect, but it is not unlawful to discriminate on the ground of age if a particular exemption is applicable.

Complaints can be made to the Australian Human Rights Commission (AHRC) about unlawful discrimination.

Section 5 of the Age Discrimination Act makes it clear that the concept of age includes an age group. Age discrimination does not include disability discrimination, so there is no overlap between the Age Discrimination Act and the Disability Discrimination Act 1992 (Cth). It is feasible, however, that a person may have complaints under both pieces of legislation arising out of an incident or a series of incidents. For instance, if a person was told they could not be employed because they were too old and too sick, this might give rise to separate complaints of discrimination.

Section 10 of the Age Discrimination Act sets out a number of limitations that arise because of the operation of the Commonwealth of Australia Constitution Act 1900 (Imp).

What is age discrimination?

Age discrimination occurs when the discriminator treats, or proposes to treat, a person because of age less favourably than in circumstances that are the same or are not materially different the discriminator treats or would treat a person of a different age (s 14 Age Discrimination Act).

The Age Discrimination Act also makes indirect discrimination on the basis of age unlawful. Indirect discrimination occurs when (s 15):

a requirement, condition or practice is imposed or proposed
the condition, requirement or practice is not reasonable in the circumstances
the condition, requirement or practice will have, or is likely to have, the effect of disadvantaging persons of the same age as the relevant person.

Areas of age discrimination

The Age Discrimination Act makes it unlawful to discriminate on the basis of age in the areas of:

employment and related matters (ss 18–25)
education (s 26)
access to premises (s 27)
provision of goods, services and facilities (s 28)
provision of accommodation (s 29)
disposal of land (s 30)
administration of Commonwealth laws and programs (s 31)
requests for information on which age discrimination might be based (s 32).

Exemptions

The Age Discrimination Act contains a number of general exemptions, including:

positive discrimination (s 33)
charities (s 34)
religious bodies (s 35)
voluntary bodies (s 36)
superannuation, insurance and credit (s 37)
superannuation legislation (s 38)
direct compliance with laws and orders (s 39)
taxation laws (s 40)
pensions, benefits and allowances (s 41)
health (s 42)
migration and citizenship (s 43).

Additionally, an exemption may be granted by the AHRC. The decision of the AHRC can be reviewed by the Administrative Appeals Tribunal. Any exemptions granted by the AHRC must be published in the Government Gazette (ss 44–47 Age Discrimination Act).