Age Discrimination in Voluntary Organisations: What are your Rights?

In 2004 the Howard government introduced the Age Discrimination Act, which makes discrimination on the basis of age unlawful. This reform added to existing legislation making it unlawful to discriminate on the basis of race (1975), sex (1984) and disability (1992).

There are, however, exceptions that allow discrimination on a number of grounds. The general rationale for these exceptions is that they are either necessary or do some social good. The Age Discrimination Act, for example, creates exceptions for charities and religious bodies. It also creates an exception for voluntary bodies. If you are an older member of a voluntary organisation, you may have experienced some form of discrimination on the basis of age. You may have wondered, “Is it really lawful?” and “Can I do anything about it?”

That depends on a number of questions:

Is it really a “voluntary body”?

If a substantial portion of the organisation’s activities are for the purpose of making a profit, then they are not a voluntary organisation (even if you are a “volunteer” ) so they are not exempt from age discrimination on this basis.

What actions are exempt?

Even if the organisation is a voluntary body, not all of its actions are exempt from discrimination on the basis of age.

The Age Discrimination Act exempts the following action:

(a) admission as members, and

(b) provision of benefits, facilities and services to members.

So, a voluntary body is allowed to make rules only allowing people of a certain age to become members. It is also allowed to make rules only allowing people of a certain age to receive benefits or use facilities and services.

But, what about other rules? Let’s say someone is already a member. Can there be a rule saying they cannot be appointed as an office holder within the voluntary organisation? To be more specific, what if a voluntary body institutes a rule that members over 80 cannot hold office? Whether or not this is unlawful is not immediately clear.

It might be said that to become an office holder is a “benefit”, and, as noted above, a voluntary body can discriminate on the basis of age in providing benefits. What is a “benefit”, though? Certainly, being an office holder is a responsibility. But, some “offices” come with perks – members of parliament, for example, have a long list of benefits. The matter seems to come down to whether there are tangible benefits in your particular role as office holder. Are some reimbursements for expenses incurred in fulfilling your duties as office holder enough? The bottom line at the moment is that there is no guidance from the Courts on this question.

What should you do?

If you are in this situation, it might be worthwhile making inquiries and possibly a complaint to the Australian Human Rights Commission. Of course, this suggestion is no substitute for more detailed legal advice based on your particular situation.