Age Discrimination Act 2004: Protections, Areas Covered and Defences

Protected ground and discrimination tests

The Age Discrimination Act 2004 (Cth) establishes protections against age discrimination in specific areas of public life. The Act applies to people of all ages, encompassing both younger and older individuals. Anti-discrimination by state in Australia provides further context on broader anti-discrimination laws.

Two primary tests are used to determine unlawful discrimination. Section 14 prohibits direct age discrimination, which occurs when a person experiences less favourable treatment due to their age, when compared to someone in materially similar circumstances. Section 15 addresses indirect age discrimination, where a condition, requirement, or practice disadvantages a group of people based on their age, and that disadvantage is not considered reasonable given the situation.

Finally, Section 16 addresses discrimination based on characteristics that are often assumed to be associated with a particular age group. Understanding these tests is crucial in assessing whether actions constitute unlawful discrimination under the Act.

Areas of public life covered

The Age Discrimination Act 2004 provides protections across various areas of public life. Part 4 Division 1 specifically addresses employment, encompassing employees, contract workers, partnerships, qualifying bodies, registered organisations, employment agencies and Commonwealth employment. Section 18 further details prohibitions against discrimination by employers concerning hiring arrangements, terms and conditions of employment, access to promotion, training, and dismissal. Anti-discrimination by state in Australia provides further context on state-based protections.

Beyond employment, the Act extends to education (s 26), access to premises (s 27), and the provision of goods, services and facilities (s 28). It also covers accommodation (s 29), land (s 30), Commonwealth laws and programs (s 31), and requests for information (s 32).

These provisions aim to ensure that age is not a barrier to accessing essential services and opportunities within these areas of public life.

Exemptions and defences

The *Age Discrimination Act 2004* includes specific exemptions and defences to its protections. One key exception relates to employment, where discrimination is not unlawful if a person is unable to perform the inherent requirements of the job due to their age. Anti-discrimination by state in Australia provides further context on state-level protections.

Part 4 Division 4 outlines several exemptions, covering actions related to positive measures, youth wages, and operations of charities, religious bodies, voluntary bodies, superannuation, insurance, health programs, and direct compliance with other Commonwealth laws. These exemptions recognise the specific circumstances and objectives of these organisations and activities.

Certain actions are also exempt if they are undertaken in direct compliance with specified Commonwealth Acts, regulations, and instruments, as outlined in section 39. It is important to note that the Act binds the Crown in right of the Commonwealth, States and Territories (s 12).

AHRC complaints process

Complaints alleging unlawful age discrimination are handled by the Australian Human Rights Commission (AHRC). These complaints are lodged under Part IIB of the AHRC Act 1986. Anti-discrimination by state in Australia provides further information on related legislation.

Following a complaint, the President of the AHRC conducts an inquiry and attempts to resolve the matter through conciliation. This process aims to facilitate a settlement between the parties involved.

If the complaint is terminated, the complainant has the option to pursue the matter further. They have 60 days to apply to the Federal Court or Federal Circuit and Family Court. The court has the power to award remedies such as damages, declarations, injunctions and other orders to address any loss or damage resulting from the unlawful conduct.