Australia prides itself on the principle of a “fair go”, a concept deeply engrained in our national identity and reflected in our legislative frameworks that promote equality and protect against discrimination. Yet, when it comes to age, the legal protection offered under the Age Discrimination Act 2004 (Cth) (ADA) fall significantly short of this ideal.
Unlike the Racial Discrimination Act 1975 (Cth) or the Sex Discrimination Act 1984 (Cth), the ADA does not impose any positive duties on employers. It was introduced not in response to a civil rights movement or a shift in public consciousness, but rather as a policy reaction to demographic trends, specifically, an ageing population and rising intergenerational conflict in the labour market. This origin is reflected in the Act’s design. It seeks to encourage additional change, rather than mandate meaningful legal obligations.
The Ada’s comparator test, which requires complainants to prove that they were treated less favourably than a person of a different age in similar circumstances is widely acknowledged as ill-suited to age-based discrimination. Age is inherently dynamic and fluid, and the existence of a true comparator is often impossible to establish. In contrast, characteristics such as race and sex are fixed and binary, making comparator analysis more workable in these contexts.
Further issues include the ADA’s short 21-day limitation period to bring forward a claim, acting as a procedural barrier for many potential complainants. Particularly older Australians and young people who may lack the resources or confidence to seek legal advice quickly. The Act also contains excessive exemptions, such as those relating to “inherent job requirements”, which provide employers with broad discretion to lawfully justify age-based exclusion.
These structural shortcomings help explain why Australia has only seen one successful federal litigation under the ADA. That case, Guiterrez v MUR Shipping Australia Pty Ltd [2023] FCA 399, highlighted the deficiencies in the Act’s enforcement mechanism. The relatively low damages awarded (albeit increased on appeal) failed to deliver meaningful redress or deterrence.
To address these issues, a comprehensive reform agenda is required. First, the comparator test should be abolished in favour of a detriment-based test, which focuses on the actual disadvantage suffered by the complainant. This would provide a more realistic and accessible avenue for redress. Second, the introduction of positive duties, akin to those in racial and sex discrimination law, would shift the burden onto employers and institutions to prevent discrimination before it occurs.
Additionally, higher penalties and removal of overly broad exemptions are critical if the ADA is to have any meaningful deterrent effect. Reform should also include an extension of the limitation period and better access to the Australian Human Rights Commission for complainants, particularly those facing structural disadvantages.
Ultimately, if Australia is serious about tackling age discrimination, it must move beyond symbolic gestures and implement laws that reflect the reality of discrimination in practice. Attitudinal change is important, but without legal force behind it, change will remain superficial. A robust, modernised ABA would not only protect individuals across the age spectrum but would also reflect our society’s professed commitment to fairness, inclusion, and equal opportunity.
Bilbie Faraday Harrison offers clear, practical advice across a broad range of legal issues. If you need assistance or would like to discuss your situation with our team, get in touch, we’re here to help.
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