Speech: Launch of ‘Access All Ages’ Report

Speech by Professor Rosalind Croucher, President, Australian Law Reform Commission at the launch of final report, Access All Ages—Older Workers and Commonwealth Laws, at Parliament House, Canberra, 30 May 2013.

Introduction to event and welcome

Good morning and welcome to this important event. I am Professor Rosalind Croucher, President of the Australian Law Reform Commission, and it is my very great privilege to welcome you to the launch of the Australian Law Reform Commission’s latest report, Access All Ages—Older Workers and Commonwealth Laws.

• Attorney-General Mark Dreyfus QC MP,
• Minister Shorten, Minister Butler,
• Commissioner Susan Ryan,
• all of you here who assisted us so willingly and well throughout the inquiry,
• ALRC colleagues—the Age Barriers team,
• friends.

In the presence of such eminent guests and especially the first law officer of the Commonwealth, may I begin by acknowledging the Ngunnawal and Ngambri peoples, who are the traditional custodians of the land on which we meet—and I pay my respects to their elders, both past and present and acknowledge Indigenous guests attending today.

The trigger for all of us being here today is the fact that Australia’s population is ageing. ‘Older’ in this context means 45 plus—something that caused somewhat of a frisson among those we consulted, many of whom realised they were already in ‘that’ group.  In 2011, persons aged 45 years and over made up 39.3% of the Australian population—up from 38.1% in 2006. Looked at over a longer timeline the shift is indeed stark: in 1901 only 4% of the population was over 65; in 2011 it was 14%. Expanding the workforce participation of older Australians is one strategy that fits within wider concerns about the implications of an ageing population. Developing law reform recommendations focused on older workers is a reflection of such concerns.

Much energy and activity—nationally and internationally—has been directed towards encouraging mature age people to remain in, or re-enter, paid work. The ALRC’s Inquiry into how to remove the barriers to this goal that are found in Commonwealth laws also contributes to finding answers.

How do you break down the barriers to workforce participation faced by mature age people? What are the barriers that stand in the way? What can law and legal frameworks do about it? These were the key challenges for the ALRC in this Inquiry.

What the ALRC contributes in this Inquiry is a range of 36 targeted recommendations that capture the momentum for reform, complementing other work in the broader area of policy development affecting mature age people. The ALRC also gives voice to wider concerns where those have been highlighted throughout the Inquiry. I will speak more in depth about the answers we reached, but first I want to invite the Attorney-General, Mark Dreyfus to officially launch this, our 120th report since our foundation in 1975.

Attorney-General—

[Following after the Attorney-General’s comments.]

Summary of the report

Thank you, Attorney-General and Minister Shorten and Minister Butler, for your kind words. I would like to follow these with a short summary of the key ideas and recommendations that the ALRC puts forward in the report. (I should note that the report is presented with its own short summary in the form of the Summary Report, a publication which now accompanies all ALRC reports in our commitment towards improved accessibility of our work.)

In developing a reform response we talk to a lot of people. We listen to a lot of people. And a lot of people put in submissions. Commitment to widespread consultation is a hallmark of best practice law reform—and this inquiry was no exception.

We conducted two national rounds of stakeholder consultation meetings, forums and roundtables following the release of each of the consultation documents—the Issues Paper and the Discussion Paper. The ALRC also received 101 submissions from a wide range of participants. A number of you are here today—thank you for your contribution.

In our travels we heard about difficulties older people faced in relation to work and we had to confront tensions within some of the key ideas that we were grappling with. Let me give you a few examples:

The tensions within the idea of ‘work’ 

The ALRC was asked to look at participation in the ‘workforce or other productive work’. How do you untangle this?  What about caring? Isn’t this productive? But is it ‘work’?

Caring sits outside the labour force in ABS definitional terms. It is valuable—no one can doubt this—as caring facilitates the economic contribution of others, or relieves economic burdens that might otherwise be borne by the State. But caring can also be a ‘barrier’ in a sense to those carers participating in the workforce. It is especially the case for women—and mature aged women in particular. Caring for persons with disability. Caring for grandchildren.

Clearly policy making in this area must navigate the complexity of the interaction between paid workforce participation and unpaid work. With an ageing population, demands for care are likely to increase—and policy decisions will affect the shape of the work/care regime.

Our recommendations therefore focus on maintaining workforce attachment, recognising the compatibility of paid work and caring responsibilities and supporting flexibility in work. The extension of the right to request flexible working arrangements on the basis of caring responsibilities will be particularly important to mature age people, and especially mature age women. And limitations on the ability to engage in work or study while in receipt of Carer Payment need attention to assist recipients to combine work and care, or to equip them to engage in paid work after they cease caring.

Another conceptual challenge was querying the very idea of ‘retirement’

Who has ‘retired’? Does this include a person who can’t find work? In 2011 over half of discouraged job seekers (56%) were aged over 55 years.

As National Seniors said to us during the inquiry, it’s really about a ‘work-retirement continuum’, rather than a clear shift of gear. “For up to 20 years, a person’s level of engagement in the workforce may cycle between periods of no paid work, full-time work and various levels of part-time paid work”.

So, how could we respond to issues like these?  Enhancing capacity to be able to do the various things that older people want to do—to work in the ways they want to and the ways they envisage ‘work’—paid and unpaid; to help them get into or back into paid work if they want. Our recommendations seek to achieve both goals.

About getting back into work—a real barrier appears to be the recruitment process

Achieving cultural change, and particularly in recruitment, was singled out by stakeholders in the Inquiry as crucial for reform. It is ‘the real game changer’, as the National Welfare Rights Network told us.

Some examples from the AHRC’s work on age discrimination in 2010:

A 58 year old applied for a store position and was asked questions in the interview about whether he could work with young people and how long he planned to work for. He was unsuccessful in getting the job.

A 50 year old applied for a position with a company. During the interview a panel member asked ‘what do you want this job for at this late stage of your life?’ The person was unsuccessful in getting the job.

I note in relation to the problem of stereotyping that is reflected in these examples the work that Susan Ryan’s unit in the Human Rights Commission is doing, in the project addressing the stereotyping of mature age persons. A number of the recommendations in our report also focus on promoting awareness of mature age workers’ rights and entitlements—by recruiters, by job services providers, by employers, and by mature age workers themselves.

What if you are a person with disability and want to participate in paid work?

Disability is clearly a mature age issue as rates of disability increase with age. In 2011, 67.5% of DSP recipients were mature aged. Recent changes allow DSP recipients to work up to 30 hours per week and remain on the DSP. But DSP recipients are concerned that any increase in their earnings may trigger a review of their qualification for the payment, and we heard that this was acting as a disincentive to taking up work.  

Here the ALRC recommended that the Guide to Social Security Law be amended to provide that undertaking paid work for fewer than 30 hours per week will not trigger a review of qualification for DSP.

Approach to reform

There were many other complex questions and issues that we had to confront and untangle during this inquiry. How does law reform address such problems? In developing our recommendations for reform we began by defining the conceptual framework upon which we would shape our ideas. Our recommendations were developed in the light of six interlinking principles:

• Participation—all Australians should feel valued and have the opportunity to participate fully in the life of our society.
• Independence—older persons should have the ability to make genuine choices about the form of participation they wish to make, including the capacity to determine when and at what pace withdrawal from paid employment takes place.
• Self-agency—an individual should have the right to make decisions about matters affecting him or her.
• System stability—laws and systems that are complex should remain stable and predictable.
• System coherence—systems should be consistent, simple and transparent for individuals. Complexity may cause disengagement in paid work.
• Fairness—national resources should be distributed fairly and responsibility should be balanced between individuals and government; and between generations—that is, ‘intergenerational equity’.

These reform principles guided the development of the targeted set of recommendations addressing the Terms of Reference in this Report.

Summary of recommendations

The Terms of Reference required the ALRC to review a number of distinct and discrete areas of Commonwealth law, to identify potential barriers to mature age persons’ workforce participation, and to recommend law reform solutions.

The approach to law reform in this Report includes a mix of strategies, directed, for example, at legislation, codes of practice, guidelines, education and training. Although the Report is presented to the Attorney-General, some of its recommendations are directed to other government agencies and bodies, professional associations and institutions, for action or consideration.

Looking at it altogether, the ALRC considers that the net effect of our recommendations will be: 

First—to provide a coordinated policy response to enabling mature age workforce participation—through a major coordinating initiative in the form of a National Mature Age Workforce Participation Plan. This will be big tapestry in which our work sits. The other recommendations will amount to specific strategies in the implementation of the National Plan, with the aim that, eg, the social security and superannuation systems do not discourage or prevent workforce participation and policy responses are guided by relevant reviews taking into account mature age workers.

Second—to provide consistency across Commonwealth laws and between Commonwealth and state and territory laws to support mature age workforce participation—eg, Commonwealth workers’ compensation laws and the insurance exceptions in Commonwealth, state and territory anti-discrimination legislation.

Third—to address age discrimination through specific amendments and through reviews (eg, compulsory retirement ages of judicial and quasi-judicial appointments, and military personnel and licensing or re-qualification requirements, with the Australian Human Rights Commission facilitating the development of guidelines to assist; and the insurance exceptions under Commonwealth, state and territory anti-discrimination legislation).

Fourth—to provide a greater awareness of mature age workers’ rights and entitlements: by recruiters, by job services providers, by employers, and by mature age workers—eg, through codes of conduct; guidance material and recognition of best practice. Mature age workers also need information that supports their ability to make choices in employment. They need to know what rights and entitlements they have to make such choices.

Fifth—to provide support for maintaining attachment to the workforce for mature age persons: eg, by ensuring that insurance coverage is available and appropriate for continued participation in work or other productive work; there are no gaps under the Commonwealth workers’ compensation schemes and that injured mature age workers remain connected to rehabilitation and return to work support services. Recommendations are also directed towards improving employment services for unemployed mature age people, acknowledging that recruiters are key gatekeepers in the employment process. And there are specific recommendations directed towards enabling carers to retain an attachment to the paid workforce—recognising the compatibility of paid work and caring responsibilities; and supporting the flexibility in work that enables choices to be made in relation to caring.

Lastly—to provide work environments, practices and processes that are appropriate for mature age workers, eg by ensuring that health and safety issues affecting mature age workers are considered in implementing the Australian Work Health and Safety Strategy 2012–2022; included in Safe Work Australia’s research and evaluation strategy and work plans; and acknowledged through recognition of best practice.

Thank yous

An inquiry such as this requires many ‘thank yous’.

First, I thank the Attorney-General for agreeing to launch the report. Next a huge vote of thanks to all those with whom we consulted—all over the country—and to those who put in submissions. The depth of engagement reflected in this process of consultation is the hallmark of best practice law reform and the ability of governments to implement them. The ALRC appreciates the work, the time and the effort that goes into both consulting with us and responding to our many questions and proposals so thoughtfully in your submissions. Your generosity in engaging with us on this, and indeed on many of our inquiries, is very much appreciated and lies at the heart of all that we do and achieve.

Our Advisory Committee members, many of whom provided specialist comment and in-depth advice over several months, made an invaluable contribution to this inquiry, and I can’t overstate how much their expertise and sound counsel has guided the ALRC and provided quality assurance to this work. Thank you all for your generous participation in this inquiry.

I must also thank the wonderful work of the team: the legal officers of the ALRC—Amanda Alford, Dr Julie McKenzie, Robyn Gilbert, Krista Lee Jones, Sara Peel (two of whom went on maternity leave during the inquiry—doing their bit to address the ageing population—not one of our recommendations!); the production team, under the leadership of ALRC Executive Director, Sabina Wynn, with Tina O’Brien once again providing key support as Project Coordinator and typesetting everything under the sun; and Marie-Claire Muir—our one-woman website ‘team’.

Finally, a profound tribute to the Hon Susan Ryan AO—a wonderful colleague and formidable ally in wearing her second hat as a part-time Commissioner of the ALRC for this inquiry.

Thank you all for joining us here today. Copies of the report and summary are available on the ALRC website. Thank you Attorney-General. Now I hope you will stay and enjoy some morning tea with us. Good morning.

Photo: (left to right) Professor Rosalind Croucher, Minister Butler, Minister
Shorten and Commissioner Susan Ryan at the launch of Access All Ages.