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.
Areas of discrimination on basis of age under SA law
Under the Equal Opportunity Act 1984 (SA) it is unlawful to discriminate on the basis of age in the following areas:
- disposal of interest in land
- conferral of qualifications
- provision of goods and services
- membership of associations
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 himself or herself 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
- sport: 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
- 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
There are a number of areas of exemption under the Age Discrimination Act 2004 (Cth), including:
- employment for domestic duties in private household
- employment where a person is unable to carry out the inherent requirements of the job because of their age; the same exemption applies to 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 accomodation is for no more than 3 other persons
- superannuation, insurance and credit
- migration and citizenship
- pensions, allowances and benefits
- some health programmes
- 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 or the Equal Opportunity Commission. There is no cost to lodge a complaint in either the Equal Opportunity Commission of South Australia or the Australian Human Rights 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 can may made to the Fair Work Commission, see the Employment chapter of the handbook on protected workplace rights: General Protections.
The Age Discrimination Commissioner may decide not to take any action for complaints on acts committed more than 6 months previously.
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.
General Protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission.
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.