United Nations ‘Open-ended Working Group on Ageing for the purpose of strengthening the protection of the human rights of older persons’
25 February 2022
On 21 February 2022, the Law Council made a submission to the United Nations ‘Open-ended Working Group on Ageing for the purpose of strengthening the protection of the human rights of older persons’ (OEWG). The submission addressed normative content on: (a) the rights of older persons to work and access the labour market, and (b) the right of older persons to access justice.
In relation to (a), the Law Council provided an overview of laws in Australia, which make unlawful (as a civil wrong) age discrimination in workplaces. Based on this analysis, the submission recommended that a new binding international instrument enshrining the rights of older person (new older persons’ instrument) should require States to:
- ensure that obtaining a remedy for age discrimination in employment is not made difficult or impossible by overly complex legislative requirements or over-reliance on individual complainants to address age discrimination; and
- consider specific mechanisms to reduce burdens on complainants, including a positive duty on employers to take reasonable and proportionate measures to eliminate against discrimination, the inclusion of a shifting burden of proof in such cases, and empowering agencies to conduct own-motion investigations.
In relation to (b), the Law Council described the considerable barriers to justice experienced by older persons in Australia, drawing significantly on the findings of the Law Council’s Justice Project. It recommended that a new older persons’ instrument should include provisions requiring that States take measures to ensure that:
- the justice system addresses the barriers to justice faced by older persons, taking into account the different needs, experiences and intersectional identities of older persons; o adequate legal aid and legal assistance services be made available to older persons to ensure they have access in practice to formal justice; and
- health services provide appropriate connections to legal assistance services for older persons in cases of elder abuse or other instances.
The submission also contrasted the way in which obligations to ensure equality before the law and access to justice in articles 12 and 13 of the Convention on the Rights of Persons with Disabilities (CRPD) had been given effect in laws which engage rights of people with disabilities compared with laws which engage the rights of older persons more generally.
The submission recommended that a new older persons’ instrument should contain a guarantee of equal recognition of older persons before the law and of their right to have and exercise their legal capacity, in terms that are no less demanding than the CRPD.
The OEWG was established by the General Assembly in 2010 to consider the existing international framework of the human rights of older persons and identify possible gaps and how best to address them. The Law Council has adopted a position of in-principle support for the establishment of a Convention on the Rights of Older Persons (pending the precise detail of the proposed Convention) and called on the Australian Government to take the same position.