Reforming Age Discrimination Law book forum: Andrew Byrnes

Professor Andrew Byrnes provides the second post in our book forum on Alysia Blackham’s Reforming Age Discrimination Law: Beyond Individual Enforcement. To see all posts, please click here.

Andrew Byrnes

24.10.2022

At the outset let me congratulate Associate Professor Blackham on the publication of what is a major contribution to the literature on discrimination law and age discrimination. There is, of course, a considerable body of literature examining the limitations of the legal frameworks that we have adopted in Australia and comparable jurisdictions to address different forms of discrimination. However, this book makes important and innovative contributions on the empirical, theoretical and policy levels: it should stimulate deep reflection and policy change.

In recent years there have been concerted efforts at the international level to persuade States that a new international convention on the human rights of older persons is required. The gist of the argument is that violations of human rights on the basis of older age are widespread and persistent, that the existing human rights standards and mechanisms are conceptually and operationally deficient in responding to those violations, and that a new dedicated treaty would make a significant positive contribution to addressing them. I would urge you to support the campaign for such a treaty by adding your voices to the many civil society organisations and individuals who have urged the Australian government to support this endeavour.

I would like to offer some reflections on the lessons that Blackham’s book offers those involved in the international campaign, and equally the lessons from the international analysis and advocacy for how we might do better in addressing age discrimination at the national level.

Ageism – is it the same for everyone?

The most obvious difference between the international campaign and the discussion of domestic age discrimination law is the types of age discrimination that are covered. The international campaign is dominated by a focus on discrimination against “older persons” or “in older age” – terms which are difficult to define but which refer to persons in the latter stages of their life course. On the other hand, domestic legislation generally protects against discrimination on the basis of age at any stage of life.

Blackham's lucid discussion of the different theoretical justifications for age discrimination law shows how the justificatory starting point influences the form and content of the legislation eventually adopted. Even though the Commonwealth Age Discrimination Act 2004 refers in its objects clause to the Madrid International Plan of Action on Ageing 2002 – which focuses primarily on older persons – the legislation is largely underpinned by the notion that every individual has a right not to be discriminated against on the basis of ageist stereotypes and inaccurate or irrelevant assumptions, whatever age they may be. It does not really articulate a power/dominance-based approach to the problem of discrimination which may affect different cohorts differently: age discrimination is, in broad terms, a wrong that is essentially the same for persons of any age who encounter it.

By contrast, the international advocacy starts from a different justification, namely that discrimination against older persons on the basis of their older age has distinctive features that make it a deserving subject for specific regulation. This approach is based on the social reality that the meaning of ageing in later life is socially constructed and older age is generally seen as a time of decline, deficit and lack of adaptability. The ageism directed against, and internalised by, older persons is thus different from ageism directed against younger people on the basis of their relatively younger age.

While both types of ageism lead to unfair treatment, their nature and impact are in important respects different and this needs to be acknowledged in policy and legislative responses. The Global Report on Ageism released in 2021 by the World Health Organization and other UN entities, which dealt with all forms of ageism, made both the commonalities and differences clear.

The need for a human rights framework

The second difference in approach between Australia’s domestic legislation and the international approach is that the domestic approach is essentially a non-discrimination approach, as opposed to a human rights approach. This may seem an odd thing to say – after all, aren't non-discrimination and equality also fundamental human rights?

I use the terms to underline the fact that Australia’s laws are largely 'comparator-based', with the wrongs to be redressed thus necessarily refracted through an anti-discrimination lens. The often poor record of Australian courts in this and other areas of discrimination law to open up to a broader understanding of the power dynamics and social structures that exclude, marginalise and disadvantage particular groups, has not helped.

International advocates certainly call for guarantees of equality and non-discrimination on the basis of older age, and these will be included in any instrument and will be defined broadly. But they also wish to see the inclusion of guarantees of the range of individual human rights that appear in other instruments, tailored to the specific circumstances of diverse older populations. The lessons from the international human rights experience to date has been that if you don’t explicitly mention older persons and their specific circumstances, they will be largely ignored. Similarly, in the Australian context, it is far from clear that the enactment of generally worded human rights acts in the Australian Capital Territory, Victoria and Queensland has yet generated a significant focus on the rights of older persons.

If such a thematically focused human rights framework were to be incorporated in a full-blooded manner into Australian domestic law, it might provide the opportunity to move beyond the straitened analysis that has so often plagued discrimination law interpretation in this country. However, it is still possible that judicial and legal culture, with its sometimes unfortunate parochialism and narrowness of interpretive vision, may still limit the potential of such norms if they are translated into domestic law.

The need for an international framework

At present, the problem in trying to bring an expansive and human rights-informed approach to the reform of domestic law within Australia is the lack of a comprehensive and coherent statement of human rights in older age at either national or international level. This is to be contrasted with the areas of racial discrimination, discrimination against women, the rights of the child, the rights of persons with disabilities and the rights of indigenous peoples (the last of course embodied in a formally non-binding General Assembly declaration).

This is why the elaboration of a comprehensive international treaty on the subject is so important to addressing ageism, age discrimination and the violation of the rights of older persons in all their forms at the international and national laws. Such an approach might challenge an approach which sees a primary focus on an enlightened anti-discrimination model, even with better enforcement procedures, as being too limiting.

Prevention and remedies from an international perspective

A final point where the findings of Blackham's research and international developments are in agreement is the need to think creatively about how we implement standards prohibiting age discrimination more effectively. The limitations of individual-complaint-based systems are well known and the efforts to move away from a sclerotic judicialization of alternative procedures in Australia have had some, though not complete, success. Thus, the focus on a positive duty, a focus on prevention and different forms of regulatory response are welcome and consonant with the right to a remedy and corresponding State obligations under the international law of human rights.

But equally importantly is the broader issue of looking beyond discrimination law, as Blackham notes in the book. Ageism is a broad social problem that needs to be addressed by a wide range of measures that must include, but also go well beyond, legal prescriptions. International law offers us guidance on the types of measures that might be adopted, both in the area of the rights of older persons but also in other areas.

In conclusion

The data, analysis and the 51 recommendations for policy and legislative change that Blackham puts forward in this book are a stimulating and important contribution to a necessary discussion about how we fix a deficient system.

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Andrew Byrnes is Emeritus Professor of Law, University of New South Wales; an associate of the Australian Human Rights Institute, UNSW and the Ageing Futures Institute, UNSW; and Honorary Senior Fellow, Melbourne Law School.

Suggested citation: Andrew Byrnes, ‘Reforming Age Discrimination Law book forum: Andrew Byrnes’ on AUSPUBLAW (24 October 2022) <https://auspublaw.org/blog/2022/10/reforming-age-discrimination-law-book-forum-andrew-byrnes/>