4.90 While compulsory retirement has been abolished for Commonwealth statutory office holders and other public servants, a number of direct and indirect compulsory retirement practices remain. In addition, while not having a specific compulsory retirement age, a range of industries and occupations require licensing and re-qualification. Such practices may create barriers to mature age participation in the workforce.
4.91 The ALRC favours individual capacity-based assessment rather than the imposition of compulsory retirement. This position was strongly supported by stakeholders throughout the Inquiry. The imposition of compulsory retirement fails to account for the differing capacities of individuals at older ages, reinforces stereotypes about the abilities of mature age workers and reduces utilisation of the workforce contribution of mature age workers. National Seniors emphasised that,
while it may be acceptable to have an age determined review point, it is not appropriate to have age determined cut off points. Licensing and re-qualification should be dependent on capacity, not chronological age. People of the same age often have widely differing physical and mental capacity.
4.92 It may be necessary in some circumstances to assess a person’s capacity to remain in their position. For example, the Ai Group emphasised that in some cases age- based restrictions ‘are necessary and justified on health and safety grounds’. However, individual capacity-based assessments can account for health and safety concerns, and are preferable to imposing a compulsory retirement age. As suggested by the Law Institute of Victoria, assessment should occur on the basis of a ‘person’s ability to perform the tasks of their particular job, regardless of their age’, an approach echoed in submissions by other stakeholders.
4.93 Industry and professional bodies are best placed to determine the most appropriate assessment and safeguards for mature age workers in their industry or profession. However, such bodies may benefit from guidance. The ALRC proposed that the AHRC should ‘develop principles or guidelines to assist these bodies to review such requirements with a view to removing age-based restrictions in favour of capacity-based requirements’.
4.94 Stakeholders also emphasised the need for industry and professional bodies to recognise and account for potential barriers faced by mature age workers in renewing their professional qualifications. For example, the ACTU submitted that
re-qualification schemes often require workers to attend professional development training before their license can be renewed. In some industries, due to limited resources there may not be sufficient training opportunities for all staff. Older workers may therefore be denied access to career and professional development training in favour of younger workers, which can negatively affect their re-qualification.
4.95 The ACTU suggested that, ‘if an older worker can demonstrate that they have attempted to attend refresher training but have been denied the opportunity, they should not be restricted from re-registering on this basis’ alone.
4.96 The ALRC considers that the provision of national principles or guidelines may assist industry and professional bodies in reviewing licensing or re-qualification requirements with a view to removing age-based restrictions in favour of capacity-based requirements. Such principles and guidelines may also assist to address issues such as those raised with respect to access to training opportunities and should be developed in cooperation with industry and professional bodies.
Recommendation 4–10 Professional associations and industry representative groups are often responsible for developing or regulating licensing or re-qualification requirements. The Australian Human Rights Commission should facilitate the development of principles or guidelines to assist these bodies to review such requirements with a view to removing age-based restrictions in favour of capacity-based requirements.
Judicial and quasi-judicial officers
4.97 The ALRC recommends that the Australian Government should initiate an independent inquiry to review the compulsory retirement ages of judicial and quasi-judicial appointments.
4.98 Under s 72 of the Australian Constitution, the maximum age for Justices of the High Court and any court created by Parliament is 70 years. While the section provides that Parliament may make a law fixing a lower age, it does not make such provision for a higher age.
4.99 There is jurisdictional inconsistency in the compulsory retirement provisions relating to other judicial and quasi-judicial officers, such as Ombudsmen. Under state and territory constitutions and legislation, compulsory retirement ages range from age 65 to 72 years of age. Inconsistency also arises as a result of provisions for the appointment of acting judges and magistrates in some jurisdictions beyond these ages.
4.100 While such compulsory retirement provisions affect a relatively small number of people, they have important symbolic implications with respect to the Australian Government’s view of the ‘capacity of people to work competently until they are of a certain age’.
4.101 In the Discussion Paper, the ALRC proposed that the Australian Government should initiate an inquiry to consider removing the compulsory ages of judicial and quasi-judicial appointments. Key stakeholders, including the Law Council, expressed support for such a review.
4.102 The ALRC prefers this approach to recommending immediate removal of compulsory retirement ages as suggested by some stakeholders, particularly in light of the complexities associated with removing compulsory retirement for judicial officers such as Constitutional requirements and public policy reasons for compulsory retirement. There may also be flow-on effects with respect to judicial pensions.
4.103 The ALRC suggests that the inquiry should be conducted in cooperation with state and territory governments and consider current inconsistencies and alternatives to compulsory retirement ages. At a minimum the inquiry should consider national consistency in the compulsory retirement ages of judicial and quasi-judicial appointments.
Recommendation 4–11 The Australian Government should initiate an independent inquiry to review the compulsory retirement ages of judicial and quasi-judicial appointments.
4.104 The ALRC recommends that the Australian Government initiate an independent inquiry to review the compulsory retirement ages for Australian Defence Force (ADF) personnel.
4.105 The compulsory retirement age for ADF personnel is 60 years and 65 years for reservists. However, there is provision for the Minister or the Chief of the Defence Force to extend the compulsory retirement age for either a specific officer or member or a class of officers or members. In the 12 months to 30 June 2012, 35 ADF personnel were granted an extension to their compulsory retirement age.
4.106 While the current average number of years of service for ADF personnel is nine years, statistics indicate that of the 56,728 ADF personnel, 3,019 were aged 50 years and above and are approaching compulsory retirement age. In August 2012, there were 50 ADF personnel over 60 years of age.
4.107 The ALRC favours individual capacity-based assessments and proposed that the Australian government should initiate an inquiry to review the compulsory retirement ages for military personnel.
4.108 While a number of stakeholders supported this approach, some stakeholders expressed concerns. For example, the Alliance of Defence Service Organisations (ADSO) emphasised the operational capability reasons for ensuring that ADF personnel ‘deployed into operations are of an age and physical fitness to meet the rigours of battle in defence of the nation’. ADSO provided two examples:
Firstly, the infantry soldier, wearing body armour and carrying his weapon and a heavy pack, could not cope with the rigours of a fire-fight unless he or she is relatively young, very fit and highly trained; secondly, the pilot, flying a high performance fighter aircraft, capable of pulling 7G and delivering precision weapons in a hostile air environment, could not cope unless he or she is relatively young, very fit and highly trained.
4.109 The ADSO submitted that ‘the need for a relatively young ADF is obvious and ADSO is very strongly opposed to any change in compulsory retirement age for the ADF’. However, ADSO did not oppose the current provision for the extension of compulsory retirement age by the Minister or Chief.
4.110 The Government of South Australia expressed concern that ‘mature military personnel in occupations associated with increased physical discomfort or physical demands may be further disadvantaged by increases to mandatory retirement ages’. The ALRC is of the view that a shift to a capacity rather than age-based compulsory retirement regime is unlikely to disadvantage military personnel in this way. Rather, it would provide military personnel who wish to remain in the ADF beyond age 60 (or 65 for reservists) an opportunity, but no compulsion, to do so, thereby removing a barrier to work for mature age military personnel.
4.111 The Defence, Science and Technology Organisation, in partnership with the University of Wollongong, is currently completing a Physical Employment Standards Review Project. The Department of Defence ‘plans to implement the new employment standards that focus on removing barriers for women across all three Services in the first phase of its five year plan’. The focus of the new standards is on removing barriers for women in the ADF. However, as this projects seeks to identify objective criteria for physical standards across the ADF, the ALRC suggests that this, and similar projects, may provide a useful basis upon which to reconsider the compulsory retirement ages.
4.112 The ALRC therefore recommends that the Australian Government initiate an independent inquiry to review the compulsory retirement ages for ADF personnel. Recommending such a review recognises the concerns expressed by stakeholders and the need for a detailed examination of this issue undertaken in cooperation with the ADF and key defence force and veterans organisations. Any such inquiry should consider a range of possible alternatives, including a capacity-based approach. It should also consider any unintended consequences arising from a change to compulsory retirement ages with respect to the calculation of death and invalidity benefits paid under military superannuation and benefits schemes.
Recommendation 4–12 The Australian Government should initiate an independent inquiry to review the compulsory retirement ages for military personnel.
 See, eg, Australian Industry Group, Submission 97; Law Council of Australia, Submission 96; National Seniors Australia, Submission 92; ACTU, Submission 88; Brotherhood of St Laurence, Submission 86; Australian Federation of Disability Organisations, Submission 78; Women in Social & Economic Research (WiSER), Submission 72; Suncorp Group, Submission 66; JobWatch, Submission 60; Government of South Australia, Submission 30.
 Law Council of Australia, Submission 46; JobWatch, Submission 25. See also World Economic Forum, Global Agenda Council on Ageing Society, Global Population Ageing: Peril or Promise? (2011), 47.
 National Seniors Australia, Submission 27.
 Australian Industry Group, Submission 37. See also JobWatch, Submission 60.
 COTA, Submission 51; Law Council of Australia, Submission 46; Diversity Council of Australia, Submission 40; ACTU, Submission 38.
 Law Council of Australia, Submission 46.
 See, eg Suncorp Group, Submission 66; Diversity Council of Australia, Submission 40; ACTU, Submission 38.
 Australian Law Reform Commission, Grey Areas—Age Barriers to Work in Commonwealth Laws, Discussion Paper 78 (2012), Proposal 2–9.
 ACTU, Submission 88. See also Australian Active Doctors Association Incorporated, Submission 35 in relation to senior doctors.
 ACTU, Submission 88.
Australian Constitution s 72.
 In 1977 the Constitution Alteration (Retirement of Judges) Act 1977 (Cth) was proclaimed following a successful referendum. It created a retirement age of 70 for all judges in federal courts.
Federal Magistrates Act 1999 (Cth) s 9, sch 1 pt 1 cl 1(4); Judicial Officers Act 1986 (NSW) s 44(1), (3); Supreme Court of Queensland Act 1991 (Qld) s 23(1); District Court of Queensland Act 1967 (Qld) s 14(1); Magistrates Act 1991 (Qld) s 42(d); Supreme Court Act 1935 (SA) s 13A(1); District Court Act 1991 (SA) s 16(1); Magistrates Act 1983 (SA) s 9(1)(c); Supreme Court Act 1887 (Tas) s 6A(1); Magistrates Court Act 1987 (Tas) s 9(4)(a); Constitution Act 1975 (Vic) s 77(3); County Court Act 1958 (Vic) ss 8(3), 14(1)(b), (1)(c); Magistrates’ Court Act 1989 (Vic) s 12(a); Judges’ Retirement Act 1937 (WA) s 3; District Court of Western Australia Act 1969 (WA) s 16; Magistrates Court Act 2004 (WA) s 5, sch 1 cl 11(1)(a); Supreme Court Act 1993 (ACT) s 4(3); Magistrates Court Act 1930 (ACT) s 7D(1); Supreme Court Act 1979 (NT) s 38; Magistrates Act 1979 (NT) s 7(1).
 For example, in NSW acting judges and magistrates can be appointed for 12 months up to either age 75 or 77: Supreme Court Act 1970 (NSW) s 37; District Court Act 1973 (NSW) s 18; Land and Environment Court Act 1979 (NSW) s 11; Local Court Act 2007 (NSW) s 16.
 Government of South Australia, Submission 30.
 Australian Law Reform Commission, Grey Areas—Age Barriers to Work in Commonwealth Laws, Discussion Paper 78 (2012), Proposal 2–10.
 National Welfare Rights Network (NWRN), Submission 99; Law Council of Australia, Submission 96; Government of South Australia, Submission 95; ACTU, Submission 88; Brotherhood of St Laurence, Submission 86; JobWatch, Submission 60.
 See, eg, National Seniors Australia, Submission 27.
 See Judges’ Pensions Act 1968 (Cth).
 Department of Defence, Correspondence, 3 August 2012.
 Ibid. Of the 50 ADF personnel over 60 years of age, 49 were men and one was a woman.
 Australian Law Reform Commission, Grey Areas—Age Barriers to Work in Commonwealth Laws, Discussion Paper 78 (2012), Proposal 2–11.
 See, eg, ACTU, Submission 88; Brotherhood of St Laurence, Submission 86; JobWatch, Submission 60.
 Alliance of Defence Service Organisations, Submission 49.
 Government of South Australia, Submission 95.
 The research is being conducted through the Centre of Expertise for the Physical Employment Standards Project, a partnership between the Defence Science and Technology Organisation and University of Wollongong: Defence Science and Technology Organisation, Physical Employment Standards, <http://www.dsto.defence.gov.au/research/6962/> at 21 March 2013; G Combet (Minister for Defence Personnel, Materiel and Science), ‘Physical Standards for Military Service to be Benchmarked’ (Press Release, 21 August 2009). See also Australian Human Rights Commission, Review into the Treatment of Women in the Australian Defence Force: Phase 2 Report (2012), 32.
 W Snowdon (Minister for Defence Science and Personnel), ‘New Physical Standards Open Paths for Women in Defence’ (Press Release, 27 November 2012).
 For example, arising from the research projects and studies presented at the First Australian Conference on Physiological and Physical Employment Standards: N Taylor and D Billing (eds), ‘Physiological and Physical Employment Standards I’ (Paper presented at Proceedings from the First Australian Conference on Physiological and Physical Employment Standards, Canberra, 27–28 November 2012).
 Compulsory retirement ages for most ADF personnel were increased in 2007. This had an unintended effect on the calculation of death and invalidity payments under the Military Superannuation and Benefits Scheme. See Australian Government Actuary, Military Superannuation and Benefits Scheme and Defence Force Retirement and Death Benefits Scheme (MSBS and DFRDB) (2008), [2.9].