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This Act may be cited as the Age Discrimination Act 2004.
This Act commences on the day after it receives the Royal Assent.
The objects of this 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; and
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; and
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; and
to promote recognition and acceptance within the community of the principle that people of all ages have the same fundamental rights; and
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;
bearing in mind the international commitment to eliminate age discrimination reflected in the Political Declaration adopted in Madrid, Spain on 12 April 2002 by the Second World Assembly on Ageing.
The following is a simplified outline of this Act:
• This Act makes it unlawful to discriminate on the ground of age.
• This Act has effect subject to certain geographical and constitutional limitations (see Part 2).
• Discrimination on the ground of age can be direct or indirect (see Part 3).
• It is unlawful to discriminate on the ground of age in relation to work (see Division 2 of Part 4) and certain other areas (see Division 3 of Part 4).
• It is also unlawful to commit an act of victimisation against another person (see Division 6 of Part 4).
• It is not unlawful to discriminate on the ground of age if a particular exemption is applicable (see Divisions 4 and 5 of Part 4).
• It is an offence to do certain things related to age discrimination (see Part 5).
• Complaints can be made to the Commission about unlawful discrimination (see the definition of unlawful discrimination in subsection 3(1) of the Australian Human Rights Commission Act 1986, and section 46P of that Act).
• Functions are given to the Commission (see Part 6).
• The Age Discrimination Commissioner is established (see Part 6A).
• Provision is made for miscellaneous matters such as delegation, protection from civil actions etc. (see Part 7).
In this Act:
act has a meaning affected by section 7.
administrative office means:
an office established by, or an appointment made under, a law of the Commonwealth; and
an office established by, or an appointment made under, a law of a Territory; and
an appointment made by the Governor‑General or a Minister otherwise than under a law of the Commonwealth or of a Territory; and
an appointment as a director of an incorporated company that is a public authority of the Commonwealth;
but does not include:
an office of member of the Assembly, member of the Executive, or Minister within the meaning of the Australian Capital Territory (Self‑Government) Act 1988; or
an office of member of the Legislative Assembly, member of the Council or Minister of the Territory, within the meaning of the Northern Territory (Self‑Government) Act 1978; or
an office or appointment in the Australian Public Service; or
an office of a person employed under the Members of Parliament (Staff) Act 1984.
A person who holds an office mentioned in paragraph (h) or (i) is covered by the definition of Commonwealth employee.
age includes age group.
The reference in subsection 26(3) to students above a particular age includes a reference to students above a particular age group.
Chief Executive Medicare has the same meaning as in the Human Services (Medicare) Act 1973.
Commission means the Australian Human Rights Commission.
Commissioner means the Age Discrimination Commissioner appointed under section 53A.
Commonwealth employee means a person who:
is appointed or engaged under the Public Service Act 1999; or
holds an administrative office; or
is employed by a public authority of the Commonwealth; or
is employed under the Australian Security Intelligence Organisation Act 1979 or the Commonwealth Electoral Act 1918; or
is a member of the Defence Force; or
is the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979); or
is a person employed under the Members of Parliament (Staff) Act 1984.
See also section 8 (Commonwealth taken to be employer of Commonwealth employees).
Commonwealth law means:
an Act, regulation, or other instrument made under an Act; or
an ordinance of a Territory, a regulation made under an ordinance of a Territory, or another instrument made under an ordinance of a Territory; or
an order, determination or award made under a law mentioned in paragraph (a) or (b).
discriminate has the meaning given by sections 14 and 15.
employment includes:
part‑time and temporary employment; and
work under a contract for services; and
work as a Commonwealth employee; and
work as an employee of a State or an instrumentality of a State.
function includes duty.
instrumentality of a State means a body or authority established for a public purpose by a law of a State and includes a local government body.
premises includes:
a structure, building, aircraft, vehicle or vessel; and
a place (whether enclosed or built on or not); and
a part of premises (including premises of a kind mentioned in paragraph (a) or (b)).
President means President of the Commission.
public authority of the Commonwealth means:
a body incorporated, whether before or after the commencement of this Act, for a public purpose by a law of the Commonwealth or a law of a Territory, being a body corporate employing staff on its own behalf; or
an authority or body, not being a body corporate, established, whether before or after the commencement of this Act, for a public purpose by, or in accordance with the provisions of, a law of the Commonwealth or a law of a Territory, being an authority or body employing staff on its own behalf; or
an incorporated company over which the Commonwealth, or a body or authority mentioned in paragraph (a) or (b), is in a position to exercise control.
registered charity means an entity that is registered under the Australian Charities and Not‑for‑profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 25‑5(5) of that Act.
services includes:
services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; or
services relating to entertainment, recreation or refreshment; or
services relating to transport or travel; or
services relating to telecommunications; or
services of the kind provided by the members of any profession or trade; or
services of the kind provided by a government, a government authority or a local government body.
State, except in subsections 10(10) and (11), includes the Australian Capital Territory and the Northern Territory.
Territory, except in subsection 10(11) or in paragraph (c) of the definition of administrative office in this section, does not include the Australian Capital Territory or the Northern Territory.
this Act includes the regulations.
For the purposes of this Act, a reference to discrimination against a person on the ground of the person’s age is taken not to include a reference to discrimination against a person on the ground of a disability of the person (within the meaning of the Disability Discrimination Act 1992).
For the purposes of this Act, omitting to do an act is taken to be the doing of an act and a reference to an act includes a reference to an omission to do an act.
For the purposes of this Act, the Commonwealth is taken to be the employer of all Commonwealth employees.
In this section:
Australia includes the external Territories.
limited application provisions means the provisions of Divisions 2 and 3 of Part 4 (other than sections 23, 31 and 32).
Subject to this section and section 10, this Act has effect throughout Australia.
Subject to section 10, the limited application provisions have effect in relation to discrimination within Australia even if the discrimination involves persons or things, or matters arising, outside Australia.
In this section:
Australia includes the external Territories.
banking has the same meaning as in paragraph 51(xiii) of the Constitution.
foreign corporation has the same meaning as in paragraph 51(xx) of the Constitution.
insurance has the same meaning as in paragraph 51(xiv) of the Constitution.
limited application provisions means the provisions of Divisions 2 and 3 of Part 4 (other than sections 23, 31 and 32).
State banking has the same meaning as in paragraph 51(xiii) of the Constitution.
State insurance has the same meaning as in paragraph 51(xiv) of the Constitution.
trading or financial corporation has the same meaning as in paragraph 51(xx) of the Constitution.
The limited application provisions have effect as provided in section 9 and the following provisions of this section and not otherwise.
Sections 18, 19 and 20 have effect in relation to discrimination against:
Commonwealth employees in connection with their employment as Commonwealth employees; and
persons seeking to become Commonwealth employees.
Section 22 has effect in relation to discrimination by an authority or body in the exercise of a power under a Commonwealth law to confer, renew, extend, revoke or withdraw an authorisation or qualification.
This Act has effect in relation to acts done within a Territory.
The limited application provisions have effect in relation to acts done by, or on behalf of:
the Commonwealth or the Administration of a Territory; or
a body or authority established for a public purpose by a law of the Commonwealth or a law of a Territory;
in the exercise of a power conferred by a law of the Commonwealth or a law of a Territory.
The limited application provisions have effect in relation to discrimination against a person on the ground of age to the extent that the provisions:
give effect to the Discrimination (Employment and Occupation) Convention, 1958 adopted by the General Conference of the International Labour Organization on 25 June 1958 (a copy of the English text of which is set out in Schedule 1 to the Australian Human Rights Commission Act 1986); or
give effect to the International Covenant on Civil and Political Rights (a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986); or
give effect to the International Covenant on Economic, Social and Cultural Rights; or
give effect to the Convention on the Rights of the Child; or
relate to matters external to Australia; or
relate to matters of international concern.
In 2004, the text of the international instruments mentioned in this subsection was available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible through that Department’s website.
The limited application provisions have effect in relation to discrimination:
by a foreign corporation, or a trading or financial corporation formed within the limits of the Commonwealth; or
by a person in the course of the person’s duties or purported duties as an officer or employee of such a corporation.
Without limiting the effect of subsection (8), the limited application provisions have effect in relation to discrimination:
by a trading or financial corporation formed within the limits of the Commonwealth; or
by a person in the course of the person’s duties or purported duties as an officer or employee of such a corporation;
to the extent that the discrimination takes place in the course of the trading activities of the trading corporation or the financial activities of the financial corporation, as the case may be.
The limited application provisions have effect in relation to discrimination in the course of, or in relation to, the carrying on of the business of:
banking, other than State banking not extending beyond the limits of the State concerned; or
insurance, other than State insurance not extending beyond the limits of the State concerned.
The limited application provisions have effect in relation to discrimination in the course of, or in relation to, trade or commerce:
between Australia and a place outside Australia; or
among the States; or
between a State and a Territory; or
between 2 Territories.
If:
the operation of this Act would result in the acquisition of property otherwise than on just terms; and
the acquisition would not be valid, apart from this section, because a particular person has not been compensated;
the Commonwealth is liable to pay a reasonable amount of compensation to the person.
If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the Court determines.
In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
A reference in this section to this Act is a reference to this Act as it has effect because of a provision of sections 9 and 10.
A reference in this section to a law of a State or Territory is a reference to a law of a State or Territory that deals with discrimination on the ground of age.
This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.
If:
a law of a State or Territory relating to discrimination deals with a matter dealt with by this Act; and
a person has made a complaint or initiated a proceeding under that law in respect of an act in respect of which the person would, apart from this subsection, have been entitled to make a complaint under the Australian Human Rights Commission Act 1986 alleging that the act is unlawful under a provision of Part 4 of this Act;
the person is not entitled to make a complaint or institute a proceeding under the Australian Human Rights Commission Act 1986 alleging that the act is unlawful under a provision of Part 4 of this Act.
If:
a law of a State or Territory relating to discrimination deals with a matter dealt with by this Act; and
an act by a person that constitutes an offence against that law also constitutes an offence against this Act;
the person may be prosecuted and convicted either under that law of the State or Territory or under this Act
Nothing in subsection (5) makes a person liable to be punished more than once in respect of the same act.