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Australian Parliamentary Joint Committee on Human Rights |
2.1 This chapter considers the responses of legislation proponents to matters raised previously by the committee. The committee has concluded its examination of these matters on the basis of the responses received.
2.2 Correspondence relating to these matters is available on the committee's website.[1]
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Purpose
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This instrument prescribes particular regulations and provisions of
regulations as exemptions from the Age Discrimination
Act 2004.
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Portfolio
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Attorney-General
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Authorising legislation
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Last day to disallow
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15 sitting days after tabling (tabled in the House of Representatives and
the Senate on 6 October 2020). Notice of motion to disallow
must be given by 30
November 2020 in the House of Representatives and the first sitting day of 2021
in the Senate[3]
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Rights
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Equality and non-discrimination; right to work
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Status
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Concluded examination
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2.3 The committee requested a response from the minister in relation to the bill in Report 12 of 2020.[4]
2.4 The Age Discrimination Act 2004 (the Age Discrimination Act) makes it unlawful to discriminate against someone on the ground of age in respect of a number of areas (including employment and the provision of goods and services).[5] The Age Discrimination Act sets out that an act will not be unlawful if it is done in compliance with certain listed legislation.[6] This includes 'prescribed regulations made under the Airports Act 1996' and 'prescribed provisions' of 'Regulations made under the Defence Act 1903'.[7] This instrument prescribes these exemptions.[8] In particular, it prescribes the entirety of the Airports (Control of On-Airport Activities) Regulations 1997, which deals with control of liquor, commercial trading, vehicles, gambling, smoking and infringement notices at airports. It also prescribes section 23 of the Defence Regulation 2016, which specifies a compulsory retirement age for certain members, and section 88, which provides that those covered under the previous regulations are also subject to the compulsory retirement age.[9] This instrument ensures that anything done by a person in direct compliance with these prescribed regulations will not constitute unlawful age discrimination.
2.5 Insofar as the instrument prescribes exemptions from the Age Discrimination Act, it engages and appears to limit the right to equality and non-discrimination, on the basis of age, as well as the right to work. By prescribing exemptions, the instrument has the effect of permitting discrimination on the grounds of age in certain circumstances, such as depriving certain members of the defence force the right to work when they reach their retirement age (listed as 60 years of age for most members of the Permanent Forces).[10] The right to equality and non-discrimination provides that everyone is entitled to enjoy their rights without discrimination of any kind and that all people are equal before the law and entitled without discrimination to equal and non-discriminatory protection of the law.[11] The right to equality encompasses both 'direct' discrimination (where measures have a discriminatory intent) and 'indirect' discrimination (where measures have a discriminatory effect on the enjoyment of rights).[12] The right to work must be made available in a
non-discriminatory way and includes a right not to be unfairly deprived of work.[13] While age is not specifically listed as a prohibited ground of discrimination under article 26 of the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee has stated that 'distinction related to age which is not based on reasonable and objective criteria may amount to discrimination on the ground of "other status" under [article 26]...or to a denial of the equal protection of the law within the meaning of the first sentence of article 26'.[14]
2.6 Differential treatment (including the differential effect of a measure that is neutral on its face) will not constitute unlawful discrimination if the differential treatment is based on reasonable and objective criteria such that it serves a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective. Mandatory retirement ages do not necessarily constitute age discrimination if justified on reasonable and objective grounds, in pursuit of a legitimate objective.[15]
2.7 In order to assess the compatibility of this instrument with the right to equality and non-discrimination and the right to work, further information is required as to:
(a) what is the objective and effect of prescribing the entirety of the Airports (Control of On-Airport Activities) Regulations 1997 as exempt from the Age Discrimination Act;
(b) what is the objective of prescribing sections 23 and 88 of the Defence Regulation 2016 as exempt from the Age Discrimination Act, and the objective behind the compulsory retirement age; and
(c) whether providing such exemptions is a proportionate limit on the rights to equality and non-discrimination and work, and in particular, are there any less rights restrictive ways to achieve the stated objective, and are there any safeguards in place to protect these rights.
2.8 The committee noted that this instrument engages and may limit the right to equality and non-discrimination, specifically on the ground of age, and the right to work. Differential treatment on the basis of age may not be unlawful discrimination if it is shown to be justified on reasonable and objective grounds, in pursuit of a legitimate objective. It is unclear whether the exemptions from the discrimination provisions in the Age Discrimination Act pursue a legitimate objective and are proportionate to that objective.
2.9 In order to form a concluded view of the human rights implications of this instrument, the committee sought the minister's advice as to the matters set out at paragraph [2.7].
2.10 The full initial analysis is set out in Report 12 of 2020.
2.11 The Attorney-General advised:
(a) What is the objective and effect of prescribing the entirety of the Airports (Control of On-Airport Activities) Regulations 1997 as exempt from the Age Discrimination Act (ADA)?
Subsection 39(1) of the ADA provides that any acts done in direct compliance with an Act or regulation mentioned or covered in Schedule 1 is exempt from the application of Part 4 of the ADA, resulting in that act not being unlawful age discrimination. This acknowledges that there are often sound policy reasons for the use of age-based criteria in a Commonwealth law or program.
The Age Discrimination Regulations 2020 provide that, for the purposes of item 8 of the table in Schedule 1 to the Act, the Airports (Control of On-Airport Activities) Regulations 1997 (Airport Regulations) are prescribed. The result is that any acts done in direct compliance with the Airport Regulations will not be unlawful age discrimination under Part 4 of the ADA.
The objective of prescribing the Airport Regulations is to ensure that age based restrictions that apply in the wider community to the range of matters covered by the Airport Regulations can be matched in the airports to which the Airport Regulations apply.
The Airport Regulations provide the Department of Infrastructure, Transport, Regional Development and Communications with regulatory responsibility for certain matters at federally-leased airports in New South Wales (NSW) - namely (Sydney (Kingsford-Smith), Bankstown and Camden Airports. Matters covered by the Airport Regulations include the sale and supply of liquor, and the regulation of gambling, smoking and vehicle use on airports. The Airport Regulations were considered necessary at the time of privatisation of airports in Australia, as constitutional issues associated with the NSW liquor licencing regime at the time prevented the Australian Government from handing over certain responsibilities to the NSW Government. These constitutional issues have been resolved.
It is intended that these responsibilities (and specifically the responsibility for liquor licencing) will be transferred to NSW in relation to NSW airports.
The Airport Regulations are due to sunset in 2024. Work commenced earlier this year on the review and options for sunsetting but was put on a temporary hold due to the COVID-19 pandemic. The sunsetting work will continue in 2021. The sunsetting review will examine the consequences of transferring responsibility for airport activities to NSW, including the removal of the exemption in the Age Discrimination Regulations.
(b) what is the objective of prescribing sections 23 and 88 of the Defence Regulation 2016 as exempt from the Age Discrimination Act, and the objective behind the compulsory retirement age?
In acknowledgement that there are often sound policy reasons for the use of age-based criteria in a Commonwealth law or program, subsection 39(1A) of the ADA provides that any acts done in direct compliance with a provision of an Act or regulation mentioned or covered in Schedule 2 is exempt from the application of Part 4 of the ADA, resulting in that act not being unlawful age discrimination. 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.
The Age Discrimination Regulations 2020 provide, as per section 5, that for the purposes of item 3AA of the table in Schedule 2 to the Act, sections 23 and 88 of the Defence Regulation 2016 (Defence Regulation) are prescribed.
Section 23 of the Defence Regulation provides for a member's retirement age. Subsection 23(3) provides there is no retirement age for an Admiral of the Fleet, a Field Marshal or a Marshal of the Royal Australian Air Force. Subsection 23(4) provides a retirement age for the following members: (a) for a member of the Permanent Forces who holds the rank of Admiral, General or Air Chief Marshal-63 years of age; (b) for any other member of the Permanent Forces-60 years of age; (c) for a member of the Reserves-65 years of age.
Section 88 of the Defence Regulation forms part of the broader transitional provisions to deal with processes begun under the Defence (Personnel Regulations) 2002 (DPR 2002) before their repeal, and deals specifically with transitional retirement age provisions.
Subsection 88 provides that: Australian Defence Force (ADF) members who had a different retirement age under the DPR 2002 may retain that retirement age upon commencement of Defence Regulation 2016; an ADF member who was able to make an election in relation to their retirement age under the DPR 2002 may make such an election as if those regulations had not been repealed; the Chief of the Defence Force may revoke an extension of a compulsory retirement age made under the DPR 2002, with the effect that the extension is determined to have been revoked before the repeal of those regulations.
Service in the Defence Force is arduous, and there are much higher demands on Defence Force members' medical and physical fitness than members of the general population. Retaining Defence Force members at less than optimal fitness results in increased risks both to the individual member and to others, including in both training and operational environments.
An inherent requirement of service in the Defence Force is that a member is fit for duty and can be deployed at short notice without limitations. The realities of aging mean that, as members of the Defence Force become older, they also become less likely to be able to meet the required medical and fitness standards that must apply to Defence Force members. This is not to say that every individual who reaches retirement age is unable to meet the necessary medical and physical fitness requirements, but fewer and fewer members can do so as they approach and pass retirement age. Older Defence Force members represent invaluable years of experience.
However, this is balanced against increased costs associated greater healthcare requirements and ensuring that older members have the requisite health and fitness standards.
One way this risk is managed in Defence is to increase the required frequency of periodic medical examinations as Defence Force members get older (this policy is currently included in the internal Defence document: Defence Health Manual, Volume 2). Retirement age is another mechanism used to manage the increased risk. A decision to permit a member to serve beyond their retirement age under paragraph 23(2)(b) of the Defence Regulation is an acceptance of the risk in relation to a particular member. This is likely to be influenced by the particular characteristics of the member, including their occupational workgroup, medical and physical fitness.
Retirement ages for Defence Force members have increased over time. For example, amendments to the Defence (Personnel) Regulations 2002 in 2007 increased the retirement age for most members in the Permanent Forces from 55 years of age to 60 years of age. Section 88 of the Regulation provides a transitional provision for members who, under the Defence (Personnel) Regulations 2002, had a younger compulsory retirement age from an earlier iteration of the regulations.
(c) whether providing such exemptions is a proportionate limit on the rights to equality and non-discrimination and work, and in particular, are there any less rights restrictive ways to achieve the stated objective, and are there any safeguards in place to protect these rights.
Defence Force Regulations 2016
The concept of a compulsory retirement age in the Defence Force is a limitation on a person's right not to be discriminated against on the basis of age that is reasonable, necessary and proportionate in the circumstances.
The Defence Force's capability is dependent on the health and fitness of its members. Ensuring that Defence Force members are fit for duty and can be deployed at short notice without medical limitations is a legitimate purpose, and the retirement age in section 23 of the Defence Regulation is a necessary, reasonable and proportionate measure to achieve this.
The concept of a retirement age acts as an institutional milestone that restricts service beyond that age. It provides the ADF with fluent workforce planning and serves as an important capability management tool. That said, it does not guarantee that a member will be given an opportunity to serve to that age.
Subsection 12(5) of the Defence Regulation provides that appointment or enlistment may be for an indefinite period or for a specified period. Those appointed or enlisted for an indefinite, or open-ended, period will become subject to the retirement age provisions of section 23 of the Defence Regulation should their service not end on other grounds before that time. Members who are appointed or enlisted for a specified period will have their suitability for further service reviewed periodically in the context of Service need and ongoing operational capability requirements.
Defence's current preference is to continue to manage service beyond the regulated retirement ages by exception. It is open to any member approaching retirement age to apply to the Chief of the Defence Force (or their delegate) to serve beyond retirement age. The Chief of the Defence Force (or their delegate) may allow a member to serve beyond retirement age in order to fill a specific capability gap, subject to the member continuing to meet the inherent requirements of service, including those relating to medical and physical fitness.
Retirement age is a necessary and reasonable mechanism used to manage increased risks as member's age. The retirement ages in the Defence Regulation represent a balance between the need to manage the risk of an aging Defence Force, with the need to not unfairly discriminate against people on the basis of age. The Defence Force retirement ages have increased over time, reflecting improvements in the average health and fitness of older people.
Airports (Control of On-Airport Activities) Regulations 1997
Discrimination on the basis of age in relation to the matters regulated by the Airport Regulations is a practical approach that mirrors Commonwealth and State age based laws restricting persons under the age of 18 from certain activities in relation to these matters.
Consideration will be given to removing the exemption for these regulations in the sunsetting review process currently underway.
2.12 With respect to the Airports (Control of On-Airport Activities) Regulations 1997 (the Airport Regulations), the Attorney-General has advised that the objective of exempting the Airport Regulations from the Age Discrimination Act is to ensure that the age based restrictions that apply in the wider community to the range of matters covered by the Airport Regulations can be matched in the airports to which the Airport Regulations apply. Matters include the sale and supply of liquor to minors, and the regulation of gambling, smoking and vehicle use on airports. The United Nations (UN) Committee on the Rights of the Child has consistently noted the harmful effects of alcohol and other illicit substances on children and recommended that States take appropriate measures to reduce access to and use of such substances by children, including by way of legislation prohibiting the sale and supply of alcohol to minors.[17] Such measures are considered by the Committee on the Rights of the Child to play an important role in realising other human rights, such as the right to health. The objective of applying age based restrictions in airports with respect to the sale and supply of alcohol to minors, and the regulation of gambling, smoking and vehicle use in airports, are likely to be legitimate objectives for the purpose of international human rights law. Exempting the specific provisions in the Airport Regulations which deal with the restriction of persons under the age of 18 from certain activities, such as sale and supply of liquor and tobacco, would appear to be rationally connected to that objective.
2.13 A key aspect of whether a limitation on a right can be justified is whether the limitation is proportionate to the objective being sought. In this respect, it is necessary to consider whether a proposed limitation is sufficiently circumscribed and whether any less rights restrictive alternatives could achieve the same stated objective. In assessing whether the measure is sufficiently circumscribed, a relevant consideration is whether it is necessary to exempt the Airport Regulations in its entirety (as opposed to the specific provisions that restrict persons under the age of 18 from certain activities). The Attorney-General has advised that the Airport Regulations are due to sunset in 2024 and as part of a sunsetting review, consideration will be given to removing the exemption for these regulations as well as the consequences of transferring responsibility for airport activities to New South Wales. While the Attorney-General has provided background information regarding the initial need to exempt the Airport Regulations in its entirety (due to constitutional issues that have now been resolved), it remains unclear why it is still necessary to exempt the entirety of the Airport Regulations. Questions therefore remain as to whether the measure is sufficiently circumscribed and the limitation on the right is only as extensive as is strictly necessary. As to whether there are less rights restrictive ways to achieve the objective, the Attorney-General has drawn attention to the fact that Schedule 2 of the Age Discrimination Act prescribes provisions of laws for which an exemption is warranted but where it is not necessary or appropriate to exempt the complete Act, regulation or instrument that contains the provision. It would appear that a less rights restrictive way of achieving the objective would be to exempt specific provisions as opposed to the entire Airport Regulations. As such, it does not appear to be a proportionate limit on the right to equality and non-discrimination to exempt the entirety of the Airport Regulations from the requirements of the Age Discrimination Act.
2.14 With respect to the exemptions of sections 23 and 88 of the Defence Regulations 2016, the Attorney-General has advised that the objective of the mandatory retirement age measure is to manage the increased risks to members and to others that arise in training and operational environments with respect to older defence force members who may have less than optimal fitness. The
Attorney-General has noted that it is an inherent requirement of service in the Defence Force that members are fit for duty and can be deployed at short notice without limitations. The Attorney-General has stated that older defence members are less likely to meet the required medical and fitness standards that apply to Defence Force members due to the realities of ageing. Ensuring that all members of the Defence Force are fit for duty and can be deployed at short notice without medical limitations would likely constitute a legitimate objective for the purposes of international human rights law. The mandatory retirement age would appear to be rationally connected to this objective insofar as it would manage the risks to individual members and others associated with older defence members who may have less than optimal fitness.
2.15 In assessing the proportionality of the mandatory retirement age measure, it is relevant to consider whether any less rights restrictive alternatives could achieve the same stated objective and whether the measure provides sufficient flexibility to treat different cases differently. The Attorney-General acknowledged that not all individual members who reach retirement age are unable to meet the required medical and fitness standards. The Attorney-General has stated that two mechanisms are used to manage the risks posed by older members who may not meet the required medical and fitness standards. The first mechanism is increased frequency of required periodic medical examinations as Defence Force members get older. The second mechanism is the prescribed mandatory retirement age.
2.16 The Attorney-General has advised that it is open to any member approaching retirement age to apply to the Chief of the Defence Force (or their delegate) to serve beyond retirement age. A member may be allowed to serve beyond their retirement age in order to fill a specific capability gap, subject to meeting the inherent requirements of service, including medical and physical fitness standards.
2.17 As stated in the initial analysis, mandatory retirement ages do not necessarily constitute age discrimination if justified on reasonable and objective grounds, in pursuit of a legitimate objective.[18] The United Nations Committee on Economic, Social and Cultural Rights has stated that while mandatory retirement ages may still be tolerated under international human rights law, 'there is a clear trend towards the elimination of such barriers' and 'States parties should seek to expedite this trend to the greatest extent possible'.[19] The exception to the mandatory retirement age provides some flexibility to treat different cases differently and may serve as a safeguard to ensure interference with human rights is proportionate. However, it is unclear how often exemptions are granted, noting that it remains at the discretion of the Chief of the Defence Force (or their delegate) and it must be for the purpose of filling a specific capability gap. Discretionary safeguards alone may not be sufficient for the purpose of a permissible limitation under international human rights law.[20] This is because discretionary safeguards are less stringent than the protection of statutory processes and may vary depending on who is exercising that discretion. The Attorney-General's response indicates there may be an alternative to the mandatory retirement age, namely, that there be increased frequency of required periodic medical examinations as Defence Force members get older. This would appear to be a less rights restrictive way to achieve the stated objective than the imposition of the mandatory retirement age, as it would ensure that older members meet the necessary medical and physical fitness standards while not imposing a blanket policy without regard to the particular characteristics of individual members. As such, although the differential treatment imposed by the mandatory retirement age would appear to serve a legitimate objective and be rationally connected to that objective, questions remain as to the proportionality of this measure, noting that the Attorney-General's response indicates there may be less rights restrictive ways of achieving the stated objectives.
2.18 The committee thanks the Attorney-General for this response. The committee notes that this instrument prescribes particular regulations under the Airport Act 2006 and the Defence Act 2003 as exempt from the requirements in the Age Discrimination Act 2004.
2.19 The committee notes that this instrument engages and limits the rights to equality and non-discrimination, specifically on the ground of age, and the right to work. Differential treatment on the basis of age may not be unlawful discrimination if it is shown to be justified on reasonable and objective grounds, in pursuit of a legitimate objective.
2.20 The committee considers that exempting the Airport Regulations from the Age Discrimination Act seeks to achieve the legitimate objective of ensuring that age based restrictions are applied in airports with respect to the sale and supply of alcohol to minors, and the regulation of gambling, smoking and vehicle use in airports. The committee notes the Attorney-General's advice as to which aspects of the Airport Regulations need to be exempt from the age discrimination requirements, but notes that the entirety of the regulations have been exempted (rather than solely those specific provisions). The committee welcomes the Attorney-General's advice that a review will be undertaken before 2024 which will consider removing the exemption from the Age Discrimination Act. However, pending such a review it does not appear to be a proportionate limit on the right to equality and non-discrimination to exempt the entirety of the Airport Regulations from the requirements of the Age Discrimination Act.
2.21 The committee considers that the mandatory retirement age for members of the Australian Defence Force seeks to achieve the legitimate objective of ensuring that all members of the Defence Force are fit for duty and can be deployed at short notice without medical limitations. In addition, the committee notes the Attorney-General's advice that it is open to any member approaching retirement age to apply to the Chief of the Defence Force (or their delegate) to serve beyond retirement age. The committee considers this offers important flexibility to treat individual cases differently. However, the committee also notes the Attorney-General's advice that there is an alternative to a mandatory retirement age, namely, increased frequency of required periodic medical examinations as Defence Force members get older. Noting this advice, some questions remain as to whether this measure is proportionate, noting that there may be a less rights restrictive way to achieve the stated objectives.
2.22 The committee recommends that consideration be given to updating the statement of compatibility with human rights to reflect the information which has been provided by the Attorney-General.
2.23 The committee draws these human rights concerns to the attention of the minister and the Parliament.
[1] See https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[2] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Age Discrimination Regulations 2020 [F2020L01138], Report 14 of 2020; [2020] AUPJCHR 176.
[4] Parliamentary Joint Committee on Human Rights, Report 12 of 2020 (15 October 2020),
pp. 2-5.
[5] Age Discrimination Act 2004, Part 4.
[6] Age Discrimination Act 2004, section 39.
[7] Age Discrimination Act 2004, Schedule 1, item 8 and Schedule 2, item 3AA.
[9] Defence Regulation 2016, sections 23 and 88.
[10] Subsection 5(2); Defence Regulation 2016, sections 23.
[11] International Covenant on Civil and Political Rights, articles 2 and 26. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights also prohibits discrimination specifically in relation to the human rights contained in the International Covenant on Economic, Social and Cultural Rights.
[12] UN Human Rights Committee, General Comment 18: Non-discrimination (1989).
[13] International Covenant on Economic, Social and Cultural Rights, articles 2(1), 6–7. See also, UN Committee on Economic, Social and Cultural Rights, General Comment No. 18: the right to work (article 6) (2005) [4].
[14] Love v Australia, United Nations Human Rights Committee Communication No. 983/2001 (2003) [8.2].
[15] Love v Australia, United Nations Human Rights Committee Communication No. 983/2001 (2003). The Committee on Economic, Social and Cultural Rights has stated that while mandatory retirement ages may still be tolerated under international human rights law, 'there is a clear trend towards the elimination of such barriers' and 'States parties should seek to expedite this trend to the greatest extent possible': see United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 6: The economic, social and cultural rights of older persons (1995) [12].
[16] The minister's response to the committee's inquiries was received on 12 November 2020. This is an extract of the response. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[17] See Committee on the Rights of the Child, General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (2013) [65]; Committee on the Rights of the Child, General comment No. 20 (2016) on the implementation on the rights of the child during adolescence (2016) [40] and [64]; Committee on the Rights of the Child, Concluding observations on the second periodic report of Nepal, CRC/C/15/Add.261 (2005) [83]-[84].
[18] Love v Australia, United Nations Human Rights Committee Communication No. 983/2001 (2003).
[19] United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 6: The economic, social and cultural rights of older persons (1995) [12].
[20] See, for example, Human Rights Committee, General Comment 27, Freedom of movement (Art.12) (1999).
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