In Australia, discrimination is prohibited in a range of areas of life under legislation, both at federal level and at state and territory level. Unlawful discrimination includes discrimination on the basis of age, sex, race and disability. Age discrimination is prohibited under the federal Age Discrimination Act 2004 in a range of contexts, including at work, in education and employment and in the provision of goods and services. This page outlines the federal laws around age discrimination.
What is age discrimination?
Age discrimination may be direct or indirect.
Direct age discrimination is where a person is treated, or proposed to be treated in a less favourable way than a person of a different age would be in similar circumstances because of the person’s age or a characteristic associated with it.
Direct age discrimination occurs when conditions, requirements or practices are imposed that are disadvantageous to persons of a specific age group and where the conditions, requirements or practices are unreasonable in the circumstances.
Age discrimination in employment
Under section 18 of the Age Discrimination Act 2004, employers must not discriminate based on age when deciding who is to be offered work, the conditions of employment, or who is offered opportunities for promotion, training and transfers. Employers must not dismiss employees because of their age or subject them to any other detriment because of their age.
Employers are required to take reasonable steps to prevent age discrimination from occurring.
Other areas of life
The Act also prohibits age discrimination in education, in access to premises, in the provision of goods, services and facilities, in accommodation, in land, and in the administration of Commonwealth laws and programs.
When is age discrimination not unlawful?
There are some situations, however, where it is not unlawful to discriminate based on age. These are outlined below.
Positive discrimination
Age-based discrimination is permissible where it occurs in order to benefit persons of a particular age – for example, offering a discount for seniors.
Youth wage
The payment of a ‘youth wage’ to workers who are younger than 21 is not unlawful under the Age Discrimination Act 2004. However, it is unlawful to dismiss a worker because they have reached the age of 21.
Charities
Charities may provide benefits or support to people of a specific age group. This is not age discrimination under the Act.
Compliance with laws
It is not unlawful discrimination when a person discriminates against a person of a specific age because they are required by law to do so – for example, refusing to hire someone who is under 18 to work behind a bar.
Inherent requirements
It is not unlawful for an employer to refuse to hire a person to perform a job when they cannot perform the inherent requirements of the job because of their age.
Complaining about age discrimination
To complain about age discrimination under the federal Act, a person can apply to the Australian Human Rights Commission (AHRC). This complaint must be made in writing and should include all the details of what happened, when it happened, and who was involved.
When it receives the complaint, the AHRC will try to resolve the complaint through conciliation. If the situation cannot be resolved through conciliation, proceedings can be initiated in the Federal Court of Australia.
Offences
There are several criminal offences contained in the Act that can attract fines or terms of imprisonment.
Under section 50, it is an offence to display or public an ad or notice that suggests an intention to act contrary to the act.
Under section 51, it is an offence to victimize a person because they have made a complaint, or initiated proceedings, under the Human Rights Commission Act 1986, or because they have done acts in compliance with the Age Discrimination Act 2004.
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