Age discrimination

Age discrimination

Age discrimination occurs when people are treated unfavourably because of their age, or because of assumptions made about people of that age. Common examples of age discrimination include preferring to hire younger over older workers regardless of competence, refusing to consider job applications from people over pension age, or sacking younger workers when they reach the age where adult wages will apply.

However, specific laws that set age requirements are not age discrimination. For example, laws that limit alcohol sales to adults, or laws requiring that anyone aged between 6 and 17 must attend school, are not age discrimination.

Legislation:

Areas of discrimination on basis of age under SA law

Under Part 5A of the Equal Opportunity Act 1984 (SA) it is unlawful to discriminate on the basis of age in the following areas:

education
employment
accommodation
disposal of interest in land
conferral of qualifications
provision of goods and services
membership of associations

Exemptions

There are exemptions in the following circumstances:

employment not connected with an employer’s business
employment for which there is a genuine occupational requirement that a person be of a particular age, or age group
employment where a person would not be able to adequately perform the work without endangering themself or other persons or respond adequately to emergency situations in connection with the employment in question
admission to an educational institution where the level of education or training provided is only available to students of a particular age
awarding of qualifications where a minimum age is a reasonable requirement for conferral
renewal of qualifications where a minimum age is a reasonable requirement
accommodation in one’s own household
accommodation where provided by a not for profit organisation for the benefit of persons of a particular age group
accommodation for recreational purposes if the accommodation is limited on a genuine and reasonable basis to persons of a particular age
compliance with provisions of an award or industrial agreement
reasonable concession fares or prices for children or seniors
charities for the benefit of persons of a particular age
special measures for the benefit of persons of a particular age or age group in order to meet a need that arises out of or is related to their age
exclusion of persons of particular age groups from participation in competitive sporting activity
associations where different classes of membership exist for persons of different ages provided on a reasonable and genuine basis or where it is reasonable for an association to discriminate in relation to the provision of a particular benefit or service
associations established wholly or mainly for the promotion of the interests of or services to persons of particular age group
the terms of insurance and superannuation, where the different treatment is based on reliable actuarial or statistical data
the legal capacity of children

Areas of discrimination on basis of age under Commonwealth law

Under the Age Discrimination Act 2004 (Cth) it is unlawful to discriminate on the basis of age in:

employment and related matters including conferral of qualifications
education
access to premises
provision of goods, services and facilities
disposal of land
administration of Commonwealth laws and programs
requests for information on which age discrimination might be based.

Exemptions

There are a number of areas of exemption under the Age Discrimination Act 2004 (Cth), including:

employment for domestic duties in private households
employment where a person is unable to carry out the inherent requirements of the job because of their age
the conferral of qualifications by qualifying bodies where a person is precluded from carrying out the inherent requirements of a profession or trade because of their age
accommodation, where the provider or a near relative lives on the premises and the accommodation is for no more than 3 other persons
superannuation, insurance and credit
migration and citizenship
taxation
pensions, allowances and benefits
some health programs
certain acts of religious and voluntary organisations
compliance with specified laws
youth wages or compliance with industrial agreements and awards.

Making a complaint

Complaints can be made to the Australian Human Rights Commission (Cth) or the Equal Opportunity Commission (SA). There is no cost to lodge a complaint in either Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.

For complaints relating to discrimination in employment, claims may be made to the Fair Work Commission, see the Employment chapter on protected workplace rights: General Protections.

Time limits:

The Australian Human Rights Commission may decide not to take any action for complaints on acts committed more than 2 years (24 months) previously [Australian Human Rights Commission Act 1986 (Cth) s 46PH]. Until 12 December 2022, this time period was 6 months.

The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained of, but can grant extensions of time [Equal Opportunity Act 1984 (SA) s 93].

General protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission, unless exceptional circumstances justify an extension of time [Fair Work Act 2009 (Cth) s 394].

Age discrimination : Last Revised: Wed Dec 14th 2022
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.

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