Elder Law Review
It’s trite to say that, at least in the industrialised world, the population is ageing.
In Australia in 1964, the average 65 year old male could expect to live for a further 12 years; a woman for 16 years. By 2004, life expectancy for a 65 year old man has increased by 50 per cent, to 18 years. Women today can expect to live for a further 21 years after reaching the traditional retirement age of 65.
This changing demographic brings many challenges. One challenge highlighted by the contributors here is age discrimination in the workforce. This is the theme of Volume 3.
As the population grows older and lives longer, the ongoing participation of mature age workers is critical. Yet negative stereotypes of these workers threaten to undermine their contribution. This is both a social justice issue and an economic concern, with improvements in economic growth linked to increases in labour force participation.
How has the law responded to this challenge? And how effective a response has it been?
Emeritus Professor Sol Encel points out that age discrimination has a much lower profile and generates less complaints than discrimination on the grounds of gender or racial origin – something that will change with the ageing workforce. His paper reviews the development of age discrimination legislation in Australia and assesses its effectiveness in the light of three state and Commonwealth reviews. Its impact is limited: unemployment is disproportionately concentrated among older workers and negative attitudes of employers persist.
Job advertisements are another challenge to legal efforts combating age discrimination. Professor Lynne Bennington argues that although advertisements in Australia (like most other jurisdictions of the industrialised world) no longer include explicit indications of age limits for recruits, they can still contain clear messages about their preferred age range through the use of ‘age specific descriptors’ such as ‘young environment’. She reports on the findings of two empirical studies and concludes that age discrimination in employment will continue unless there is significant and sustained education of employers.
From South Africa, Alex Walt offers a comparative analysis of the treatment of age discrimination in the United States of America, Canada and South Africa. He provides a useful examination of legislation and case law and offers some alternatives to the ‘indignity of mandatory retirement’: staggered retirement carried out over a period of years, part-time employment, and training for other employment. His view that it is a human rights imperative for society to recognise the contribution made by older workers is one that resonates with all the contributors in this section of the Review.
Rachael Patterson offers an analysis of the most recent addition to Australia’s suite of anti-discrimination laws: the Commonwealth Age Discrimination Act 2004. Will it succeed in eradicating compulsory retirement and age discrimination within the Australian workforce? Again, she points to the empirical reality: the persistence of ageist attitudes and behaviour among employers. Her paper argues that compliance with the law is closely linked with normative belief and considers whether a moral duty to refrain from age discrimination can be grounded within the natural law ethic.
In our regular News feature you can read about recent changes to Power of Attorney legislation in NSW; the first decision by an Australian court on the withdrawal of medical treatment, nutrition and hydration from an incompetent patient; and progress in the fight against elder abuse.
In the Comments section, Brenda Bailey from the Council on the Ageing reports on concerns of discrimination against elderly people who have been refused service (for example, at banks) because of an inability to produce photo identification. In NSW the ‘Proof of Age’ card is only available to residents aged 18 to 25. The NSW Government is yet to effectively address these concerns.
And in our new feature, Elder Law in Practice, lawyers Terry Purcell and Dawn Wong share the story of the birth and growth of their firm, RetireLaw, one of the very few specialist elder law firms in Australia. We hope to profile other aspects of ‘Elder Law in Practice’ in forthcoming issues: legal practices, community projects, social justice initiatives and pro-bono schemes from all over the world that specifically target the legal needs of older people.
As always, happy reading!
 Peter Costello, speech delivered February 2004, quoted in 'Costello speech in full', Sydney Morning Herald (Sydney), 25th February 2004.