Age Discrimination (Tas)
In Tasmania it is prohibited to discriminate against a person on the basis of certain attributes, including race, gender, religion, disability and age. Tasmania’s anti-discrimination laws are set out in the Anti-Discrimination Act 1998. This article deals with age discrimination in Tasmania.
State law or federal law?
Age discrimination is also prohibited under federal law. The provisions of the Tasmanian Anti-Discrimination Act overlap with the federal laws against discrimination on the basis of age.
Which legislative scheme a person should complain of age discrimination under depends on the context in which the alleged discrimination occurred. If you are in doubt as to whether to make a complaint to the federal Human Rights Commission or the Tasmanian Anti-Discrimination Commission, you should seek specialist legal advice.
What is discrimination?
Discrimination can be direct or indirect.
Under section 14 of the Act, direct age discrimination occurs when a person treats someone less favourably because of their age – for example, refusing a person a job because they are over 50. Direct discrimination an occur regardless of whether the person’s age is the only or the main reason they are treated less favourably.
Indirect age discrimination occurs when a person imposes a condition, requirement or practice that is unreasonable in the circumstances and that disadvantages people of a particular age – for example, imposing a requirement that all employees must have graduated prior to 1990. Indirect discrimination can occur regardless of whether the discriminator is aware that the requirement disadvantages a group.
When is age discrimination unlawful?
Age discrimination is prohibited in the following contexts.
- Education and training;
- Provision of facilities, goods and services;
- Administration of state laws and programs;
- Awards, enterprise agreements and industrial agreements.
There are a number of exceptions set out in the Act. These are situations where it is not unlawful to discriminate on the basis of age because there is a legitimate reason for doing so.
Sporting activities are allowed to be restricted to a particular age group.
While discrimination is generally prohibited in relation to membership and activities of clubs, this does not apply to age-based discrimination. Clubs may exists for a particular age group.
Superannuation, insurance and financial services
Superannuation services, insurance and financial services may be provided differently to different age groups where this is reasonable and based on reliable data.
Voluntary and compulsory retirement and voluntary severance may be based on age.
Age-based discrimination in employment is allowed where it is based on the genuine occupational requirements of the position or on award rates based on age.
Education programs may be provided to people of particular age groups.
Benefits and concessions
Benefits and concessions may be provided based on age.
Children accompanied by adults
Children may be required to be accompanied by adults where there is a risk that the child may cause a disruption or endanger themselves if not accompanied by an adult.
Complaints about alleged age discrimination can be made to the Tasmanian Anti-Discrimination Commissioner. The Commission may investigate the complaint and refuse it, refer it for conciliation or refer it to the Civil and Administrative Tribunal (TASCAT) for determination.
Conciliation conferences occur in private and are designed to encourage the parties to resolve the issue informally and in a way that is mutually acceptable.
When a complaint is referred to the Tribunal for an inquiry, the Tribunal may progress the matter to a hearing, or refer it to conciliation, depending on the views of the parties. When a matter is progressed to a hearing, the Tribunal hears the evidence of the parties and their witnesses and then determines whether the alleged discrimination has been proven.
If discrimination has occurred, the Tribunal may make one or more orders to remedy the situation, including an order that the respondent does not repeat the discriminatory conduct, that the complainant be re-employed, that the respondent apologise to the complaint or pay compensation or a fine.
A party can appeal against a decision of TASCAT to the Supreme Court of Tasmania. The Supreme Court can affirm, vary, or revoke orders made by the Tribunal.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.