Page 251 - Week 01 - Thursday, 24 February 1994
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discriminate on the basis of age, and presumably many of these exemptions were inserted in the Bill on the basis of comments made arising out of public consultation. This Bill was released in draft form, or at least the discussion paper raised the issues in draft form and they have resulted in some comments and changes. I will quote some examples.
It is illegal to discriminate on the basis of age, although there can be discrimination on the basis of age if you are the Director of Family Services and you are making certain insertions in the register of persons seeking to place a child for the purpose of adoption. You can discriminate on the basis of age if it is under the Commonwealth Occupational Superannuation Standards Act 1987. You can discriminate on the basis of age if your discrimination is based on actuarial or statistical data on which it is reasonable to rely, or other data of another kind on which it is reasonable to rely. You can discriminate on the basis of age if you are putting on a dramatic production or other entertainment in which you are seeking a person of a particular age group for the purposes of authenticity. So you could not have a 15-year-old playing King Lear, presumably. Similarly, if you want to have calendars with nubile young ladies on them and a 65-year-old person wants to be in that - - -
Mr Connolly: "Young persons", Mr Humphries; gender non-specific language.
MR HUMPHRIES: Yes, they did have young persons ones, but I think that some of them are explicitly young ladies and there are certain age requirements that you might insert in those circumstances. It is also legal to discriminate on the basis of age when paying a youth wage. It is legal to discriminate on the basis of certain standards which might be required to comply with reasonable health and safety requirements; and so on, in this legislation. There are some questions about that.
It is not mentioned in this Bill, but there will also be an exemption from this provision to do with the capacity of the Government to discriminate on the basis of the retirement age of judges. I might mention at this point that originally I had considered an amendment to the Judicial Commissions (Consequential Amendments) Bill now before the Assembly to remove that requirement that there be some forced retirement age of judges and magistrates at the age of 70, until I was reminded by the Attorney-General that the people of Australia passed a constitutional amendment in 1977 which made it mandatory for there to be compulsory retirement of judges of the High Court at the age of 70, and it seems unreasonable that we should take a different view with respect to other lesser judicial officers in this Territory. So that is another exemption to the concept that we should have a compulsory prohibition on discrimination on the basis of age.
I suppose the question that springs to mind in that respect, Madam Speaker, is this: If there are so many exemptions that have been given rise to in this process, have we picked up all the possible exemptions that might be available? If there is a question of whether we have not done so, is it appropriate that we use a formula which in fact is contained in the Bill and in the Act and which might, perhaps, be more appropriate? A formula is picked up in proposed new paragraph 29(2)(e). That refers to discrimination in respect of superannuation and it says that discrimination is lawful where "the discrimination is reasonable having regard to any other relevant factors". That is a similar provision to the provision that occurs in section 8 of the Act. Paragraph 8(1)(b) talks about people
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