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Commonwealth Department/Agency Legislation and programs with age-based provisions

Aboriginal and Torres Strait Islander Commission

The Community Development Employment Projects (CDEP) scheme has similar age criteria to income support programs administered by FACS. CDEP commenced in 1977 in response to requests from Indigenous communities who wanted to combat the debilitating effects of welfare dependency. CDEP Projects offer meaningful work to 36 300 participants and provide social, economic and cultural benefits to Aboriginal and Torres Strait Islander

communities.

Agriculture, Fisheries and Forestry No relevant provisions identified at this stage.

Further work will be conducted.

Attorney-General’s Department Various provisions in the Family Law Act 1975, including provisions which relate to the age of a child for the purpose of various orders such as parenting orders and child maintenance orders.

Various provisions in the Marriage Act 1961 including provisions which relate to marriageable age.

There are age-based provisions in various Commonwealth criminal laws. Appropriate age-based provisions are included in the Crimes Act 1914, with respect to: search warrants and powers of arrest; criminal liability; admissibility of evidence in proceedings for sexual offences;

cross-examination in proceedings for sexual offences; and the sentencing, imprisonment and release of federal offenders. Appropriate age-based provisions are included in the Criminal Code Act 1995 with respect to: circumstances in which there is no criminal responsibility and sexual servitude offences. There are other relevant provisions in other Commonwealth criminal laws.

The Constitution fixes a retirement age of 70 for Justices of the High Court. The

Constitution also sets a retirement age of 70 for members of courts created by the

Parliament but allows the Parliament to set a lower retirement age for them. The only statutory provisions relating to age for members of the federal judiciary are contained in the Federal Magistrates Act 1999, which set an age limit of 70 for federal magistrates.

The Administrative Appeals Tribunal Act 1975 sets an age limit of 70 for judges who are presidential members of the Tribunal.

The Act also sets age limits of 70 for tenured full-time Deputy Presidents of the Tribunal and of 65 for tenured full-time senior members.

The Australian Law Reform Commission Act 1996 provides that where a member of the Commission who is a judge ceases to be a judge the Governor-General may terminate the member’s appointment. This provision could be applied where a member judge turned 70.

The Defence Force Discipline Appeals Act 1955 sets an age limit of 70 for members of the Defence Force Discipline Appeal

Tribunal, who must be judges.

The Native Title Act 1993 provides that a member of the National Native Title Tribunal who is a judge ceases to be a member if he or she ceases to be a judge. This provision would apply where a member judge turned 70.

The Judges’ Pensions Act 1968 provides for pensions of judges, one of the qualifying

conditions for which is being at least 60 years of age. The Act also provides for pensions for dependants, including age criteria for child dependants.

Funding for some community legal centres is structured according to guidelines that target resources to children’s issues.

The national classification scheme for films, computer games and publications is largely age-based. The Classification (Publications, Films and Computer Games) Act 1995 (Cth) forms part of the Commonwealth’s

contribution to the national classification

scheme. The Classification Board and the Classification Review Board apply the National Classification Code and the

Classification Guidelines in classifying films, computer games and publications.

Department of Communications, Information Technology and the Arts

Australian Sports Drug Agency Regulations – Reg 34, allows the removal of a competitor’s details from the Register of Notifiable Events if they were under 18 at the time of the event.

AIS Scholarship Sports Programs – are by design developmental in nature (eg the AIS Netball Program is limited to athletes in the under 21 age group, the Men's Soccer Program targets 16-18 year old players). A large numbers of sporting competitions are conducted on an age basis (eg Masters sport, under-age competitions in many sports).

Section 122 of the Radiocommunications Act 1992 provides that the Australian

Communications Authority (ACA) must not issue a certificate of proficiency unless the ACA is satisfied that the applicant has reached the minimum age for the particular class of certificates (for use of a transmitter under a particular class of transmitter licences).

Various age provisions in awards of the Australian Broadcasting Commission (employment of minors as actors)

In Film Australia’s Enterprise Agreement there is additional notice for termination of employees over 45

In Telstra’s AOTC Redundancy Agreement—

certain age provisions. (However, as a matter of policy, Telstra no longer applies these

provisions). Junior rates of pay in Telstra Awards.

Defence There are a number of age-based provisions

in various Defence Acts and Regulations.

These include provisions for compulsory retirement age in the Defence Act 1903 and supporting detail in Defence (Personnel) Regulations 2002.

There are also age-related provisions in the Defence Act 1903, Naval Defence Act 1910 and

Air Force Act 1923 and other instruments (including Defence Instructions) that deal with a range of other matters. There are age limitations on people belonging to the Australian Cadet Scheme. There are also age-based provisions within the two Defence superannuation schemes, Defence Retirement and Death Benefit Scheme (DFRDB) and the Military Superannuation and Benefits Scheme (MSBS). There are also requirements in Defence Instructions for individual readiness for employability and deployability.

Department of Education, Science and Training

References to school age in the States Grants (Primary and Secondary Education Assistance) Acts and Indigenous Education (Supplementary Assistance) Act 1989

Department of Employment and Workplace Relations

Various laws and programs. For example, various provisions in the Workplace Relations Act 1996 (including youth wages) the Safety, Rehabilitation and Compensation Act 1988 and the Seafarers Rehabilitation and Compensation Act 1992

Department of Environment and Heritage Environment Australia has advised that there are no age criteria or issues within their

responsibility Department of Family and Community

Services

(Note: Social Security Act and related legislation recommended for separate permanent exemption)

Various provisions in the Social Security Act 1991, related legislation, and various programs.

FACS provided extensive detail on relevant laws and programs to the Core Consultative Group during its deliberations.

Department of Finance and Administration General superannuation regulatory legislation with which all Commonwealth employee superannuation schemes must comply, including

• Superannuation Act 1922

• Parliamentary Contributory Superannuation Act 1948

• Superannuation Act 1976

• Superannuation (Productivity Benefit) Act 1988

• Superannuation Act 1990 and PSS Trust

Deed and Rules, and

• Papua New Guinea (Staffing Assistance) (Superannuation) Regulations 1973 Age limits in the Commonwealth Electoral Act 1918, and Referendum (Machinery Provisions) Act 1984

Department of Foreign Affairs and Trade DFAT has advised that age discrimination legislation would have little impact on its legislation and programs.

Section 7 of the Passport Regulations 1939 (as amended 1 July 2002) allows for a passport to be issued to a prescribed minor (ie, a person under 18 years old who is not married) or a person over 75 years for 5 years (rather than for the standard 10 years). A person over 75 years of age does not have take to a five year passport, and can be issued with a standard 10 year passport.

Department of Health and Ageing Various laws and programs. Some examples of legislation that may contain age-related

considerations or provisions, or have age-related effects are:

• National Health Act 1953

• Health Insurance Act 1973

• Therapeutic Goods Act 1989 , Therapeutic Goods Regulations and Therapeutic Goods (Medical Devices) Regulations

• Australian Hearing Services Act 1991 and Hearing Services Administration Act 1997 and subordinate legislation

Department of Immigration and Multicultural and Indigenous Affairs (Note: recommended for separate permanent exemption)

Various legislation, policies and programs including eligibility for skilled migration, family stream, working holiday maker scheme and student visa classes in the Migration Regulations 1994; minimum age requirement provisions in the Migration Act 1958; various provisions in the Australian Citizenship Act 1948; some provisions of the Immigration (Guardianship of Children) Act 1946 and the Immigration (Education) Act 1971.

DIMIA provided extensive detail on relevant

programs to the Core Consultative Group during its deliberations.

Department of Industry, Tourism and Resources

The ‘age’ of companies is specified in some programs.

Department of the Prime Minister

and Cabinet Age-based provisions in PM&C’s portfolio legislation relate to minimum retirement age for superannuation purposes, or the abolition of compulsory retirement age.

Auditor General Act 1997 – sets a minimum retiring age for the Auditor-General of 55, for the purposes of the 1976 and 1990 superannuation acts, unless the instrument of appointment specifies a younger age.

Inspector-General of Intelligence and Security Act 1986 – Compulsory retirement age abolished under Abolition of Compulsory Age Retirement (Statutory Officeholders) Act 2001.

Appointments made before the commencement of the amendments (29 October 2001) are exempt.

Office of National Assessments Act 1977 – Compulsory retirement age abolished under Abolition of Compulsory Age Retirement (Statutory Officeholders) Act 2001.

Appointments made before the commencement of the amendments (29 October 2001) are exempt.

Ombudsman Act 1976 – Retirement on grounds of invalidity is not available for an Ombudsman under 60 years of age who is a member of the superannuation scheme established under the Superannuation Act 1990, unless he or she has a certificate from the Commonwealth

Superannuation Board of Trustees. Compulsory retirement age abolished under Abolition of Compulsory Age Retirement (Statutory

Officeholders) Act 2001. Appointments made before the commencement of the amendments (29 October 2001) are exempt.

Public Service Act 1999 – Minimum retiring age is 55. (s.30)

Resource Assessment Commission Act 1989 – Retirement on grounds of invalidity is not available for a Commissioner under 60 years of age who is a member of the superannuation scheme established under the Superannuation Act 1990, unless he or she has a certificate from the Commonwealth Superannuation Board of Trustees, or an eligible employee under maximum retirement age.

Department of Transport and Regional Services

Road Transport – various model laws on

licencing and safety requirements concerning the transport of dangerous goods, operation of heavy vehicles etc. The Australian Road Rules—eg, age limit for riding bikes on footpaths etc. Motor Vehicle Standards Regulations, requiring driving age for importers of road vehicles.

Aviation – 60 year max age for international pilot’s licence; periodic medical examination of pilots over 40; co-pilots required for pilots over 60; flight review required yearly over 60, 6 monthly over 65; Minimum ages for pilot’s licences, flight radio operator’s licences etc Marine – Minimum age for employment at sea;

certificates for operating rescue boats; minimum ages for various certificates to perform functions at sea; Medical testing requirements vary

according to age; Separate sleeping accommodation to be provided if over 18;

Minimum age for licences to handle cargo;

operate engines of various size/power.

The Acts that govern the non-self governing territories (eg Christmas Island Act 1958, Cocos (Keeling) Island Act 1955) adopt state law which might in turn include age-based provisions.

The Airports (Control of On-Airport Activities) Regulations includes references to selling liquor to minors.

Department of the Treasury Various laws, eg, Income Tax Assessment Acts and there are age-based provisions in the

Superannuation Industry (Supervision) Act 1993 and the Superannuation Guarantee

(Administration) Act 1992.

Section 201 of the Corporations Act 2001 (the

Corporations Act) sets out the age limits for directors of public companies. It prescribes a minimum age of 18 years for all directors. Under section 201C the appointment or re-appointment of public company directors aged 72 years and older is prohibited unless passed by special resolution (75% majority) at the annual general meeting each year. However, this is to be amended.

Department of Veterans’ Affairs (Note: recommended for separate permanent exemption)

Veterans’ Entitlements Act 1986 – age is a factor in a range of provisions including provisions in relation to aged care residents, pension age for veterans, dependants under the age of 18 years, age service pension, etc. Defence Service Homes Act 1918 – age is a factor in a range of provisions including provisions which refer to retirement villages.

Age is also a factor in a range of provisions in delegated legislation including the Guide to the Assessment of Rates of Veterans’ Pensions;

Veterans’ Entitlements (Counselling and

Psychiatric Assessment – Older Former Children of Vietnam Veterans) Determination 2001; and the Australian War Memorial Regulations 1983.