Part 5AProhibition of discrimination on ground of age

Part 5A—Prohibition of discrimination on ground of age Division 1—Discrimination to which Part 5A applies 85A—Criteria for establishing discrimination on ground of age For the purposes of this Act, a person discriminates on the ground of age— (a) if he or she treats another unfavourably because of the other's age; or (b) if he or she treats another person unfavourably because the other does not comply, or is not able to comply, with a particular requirement and— (i) the nature of the requirement is such that a substantially higher proportion of persons of a different age or age group complies, or is able to comply, with the requirement than of those of the other's age or age group; and (c) if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of the other's age or age group, or on the basis of a presumed characteristic that is generally imputed to persons of that age or age group; or (d) if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs. 85B—Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of age— (2) It is unlawful for an employer to discriminate against an employee on the ground of age— (b) by denying or limiting access to opportunities for promotion, transfer or training, or to other benefits connected with employment; or 85C—Discrimination against agents and independent contractors (2) It is unlawful for the principal to discriminate against a person on the ground of age— (3) It is unlawful for the principal to discriminate against an agent or independent contractor on the ground of age— (b) by denying or limiting access to opportunities for promotion, transfer or training or other benefits connected with the agent's or independent contractor's position; or 85D—Discrimination against contract workers (1) This section applies to a principal for whom work is done by persons (contract workers) under a contract between the principal and another where the contract workers are employed or engaged by a person other than the principal. (2) It is unlawful for a principal to enter into a contract or arrangement with another for work to be performed by contract workers under which a person is to discriminate against a contract worker on the ground of age. (3) It is unlawful for the principal to discriminate against a contract worker on the ground of age— 85E—Discrimination within partnerships (1) It is unlawful for a firm, or a person promoting the formation of a firm, to discriminate against a person on the ground of age— (2) It is unlawful for a firm to discriminate against a partner on the ground of age— 85EA—No compulsory retiring age Despite any Act or law to the contrary, a provision in an industrial or enterprise award, determination or agreement made or approved under the Fair Work Act 1994 that— (a) imposes, or requires or authorises an employer to impose, a compulsory retiring age in respect of employment of any kind; or (b) requires or authorises an employer to terminate the employment of a person on the basis of the person's age, is void and of no effect. 85F—Exemptions (b) a principal engaging a natural person as an independent contractor for purposes not connected with a business carried on by the principal. (2) This Division does not apply to discrimination on the ground of age in relation to employment or engagement for which there is a genuine occupational requirement that a person be of a particular age, or age group. (3) This Division does not apply to discrimination on the ground of age in relation to the employment or engagement of a person if the person is not, or would not be, able— (a) to perform adequately, and without endangering himself or herself or other persons, the work genuinely and reasonably required for the employment or position in question; or (b) to respond adequately to situations of emergency that should reasonably be anticipated in connection with the employment or position in question. (4) This Division does not render unlawful— (a) acts done in order to comply with the provisions of— (i) an award or enterprise agreement under the Fair Work Act 1994; or (ii) a fair work instrument under the Fair Work Act 2009 of the Commonwealth; or (iii) an award or determination given continuing effect under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth; or (b) a decision to offer employment only to a young person, or the employment of a young person, where the rate of pay for that employment is a rate less than that applicable to an adult, fixed by or in accordance with the provisions of— (i) an award or enterprise agreement under the Fair Work Act 1994; or (ii) a fair work instrument under the Fair Work Act 2009 of the Commonwealth; or (iii) an award or determination given continuing effect under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth. 85G—Discrimination by associations on ground of age (a) against an applicant for membership on the ground of age— (i) by refusing or failing to admit the applicant to membership, or to a particular class of membership, of the association; or (ii) in the terms on which the applicant is, or may be, admitted to membership, or a particular class of membership; or (b) against a member of the association on the ground of age— (2) Subsection (1)(a) does not apply to discrimination on the ground of age if the association has, on a genuine and reasonable basis, established different classes of membership for persons of different ages, or age groups. (3) Subsection (1)(b)(i) and (ii) do not apply to discrimination on the ground of age if it is reasonable that the association discriminate in relation to the provision of a particular service or benefit to members of a particular age, or age group. (4) This section does not apply to an association established wholly or mainly for— (a) the promotion of the interests of persons of a particular age group; or (b) the organisation or provision of services for persons of a particular age group; or (c) the organisation or provision of activities for persons of a particular age group. 85H—Discrimination by qualifying bodies (1) It is unlawful for an authority or body empowered to confer an authorisation or qualification that is needed for, or facilitates, the practice of a profession, or the carrying on or engaging in of a trade or occupation, to discriminate against a person on the ground of age— (b) by withdrawing the authorisation or qualification. (2) This section does not apply to discrimination on the ground of age— (a) by or on account of the imposition of a reasonable and appropriate minimum age under which an authorisation or qualification will not be conferred; or (b) in respect of the terms or conditions on which an authority or body confers or renews an authorisation or qualification. (3) This section does not apply to discrimination against a person on the ground of age where, in consequence of his or her age, the person is not, or would not be, able to practise the profession, or carry on or engage in the trade or occupation, adequately or safely. 85I—Discrimination by educational authorities (1) It is unlawful for an educational authority to discriminate against a person on the ground of age— (2) It is unlawful for an educational authority to discriminate against a student on the ground of age— (a) in the terms or conditions on which it provides the student with training or education; or (3) This section does not apply to discrimination on the ground of age in respect of the admission of a person to a school, college or institution if the level of education or training sought by the person is provided only for students above a particular age. 85J—Discrimination by person disposing of an interest in land It is unlawful for a person to discriminate against another on the ground of age— 85K—Discrimination in provision of goods and services (whether for payment or not) to discriminate against another on the ground of age— (c) by refusing or failing to supply the goods or to perform the services; or (d) in the terms or conditions on which or the manner of which the goods are supplied or the services are performed. (3) This section does not apply to discrimination on the ground of age in relation to— (a) the charging of a reduced fee, fare or price, or no fee, fare or price, for the benefit of a particular age group if the concession is based on genuine and reasonable grounds; or (b) the terms or conditions on which— (i) a ticket is issued; or (ii) admission is allowed to a place, if those terms or conditions are imposed on a genuine and reasonable basis for the benefit of a particular age group. 85L—Discrimination in relation to accommodation (1) It is unlawful for a person to discriminate against another on the ground of age— (a) in terms or conditions on which accommodation is offered; or (c) by deferring such an application or according the applicant a later order of precedence on a list of applicants for that accommodation. (3) It is unlawful for a person to discriminate against a person for whom accommodation has been provided on the ground of age— (4) This section does not apply to discrimination on the ground of age in relation to the provision of accommodation by an organisation that does not seek to secure a pecuniary profit for its members, if the accommodation is provided only for persons of a particular age group. (5) This section does not apply— (a) in relation to the provision of accommodation for recreational purposes if the use of that accommodation is limited, on a genuine and reasonable basis, to persons of a particular age group; or (b) in relation to the provision of accommodation if the person who provides, or proposes to provide, the accommodation, or a near relative of that person, resides, and intends to continue to reside, in the same household as the person requiring the accommodation. Division 6—General exemptions from Part 5A 85M—Legal capacity of children Nothing in this Part derogates from the operation of a law that relates to the juristic capacity of children. 85N—Charities (a) affect a provision in a charitable instrument for conferring benefits wholly or mainly on persons of a particular age, or age group; or 85O—Testamentary dispositions or gifts This Part does not apply to the disposal of an interest in land or goods, or the provision of services, by way of, or pursuant to, a testamentary disposition or gift. 85P—Projects for the benefit of persons of a particular age group This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking for the benefit of persons of a particular age or age group in order to meet a need that arises out of, or that is related to, the age or ages of those persons. 85Q—Sport This Part does not render unlawful the exclusion of persons of particular age groups from participation in a competitive sporting activity. 85R—Insurance etc (1) This Part does not render unlawful discrimination on the ground of age— (a) in the terms on which an annuity or life insurance is offered or may be obtained; or (b) — (i) in the terms on which a person may become a member of a superannuation scheme or provident fund; or (ii) in the manner in which a superannuation scheme or provident fund may be administered. (2) This Part does not render unlawful discrimination on the ground of age in the terms on which accident insurance or any other form of insurance (other than life insurance) is offered or may be obtained where the discrimination— (a) is based on actuarial or statistical data from a source on which it is reasonable to rely; and (b) is reasonable having regard to the data.