Sex Discrimination Amendment Act 1991 (Cth)
PART 1—PRELIMINARY
Section
1. Short title
2. Commencement
3. Application
PART 2—AMENDMENTS OF THE SEX DISCRIMINATION ACT 1984
4. Principal Act
5. Interpretation
6. Discrimination in employment or in superannuation
7. Acts done under statutory authority
8. Insertion of new section:
40a. Review of operation of subsections 40 (2) and (3)
9. Repeal of section 41 and substitution of new sections:
41. Insurance
41a. New superannuation fund conditions
41b. Existing superannuation fund conditions
10. Commission may grant exemptions
PART 3—AMENDMENTS OF THE MARRIAGE ACT 1961
11. Principal Act
12. Repeal of section 11 and substitution of new section:
11. Marriageable age
13. Authorisation of marriage of person under age of 18 years in exceptional circumstances
14. Restriction on solemnization of marriages under this Part
15. Solemnization of marriages where a party to the marriage is not an Australian citizen etc.
16. Validity of marriages
17. Marriageable age—transitional
Section
PART 4—AMENDMENTS OF THE WAR GRATUITY ACT 1945
18. Principal Act
19. Interpretation
20. Minimum war gratuity in case of death and total dependency
21. Death of member before date of entitlement
22. Payment of war gratuity before due date
23. Further amendments
SCHEDULE FURTHER AMENDMENTS
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The Parliament of Australia enacts:
Sections 5, 6 and 9 commence at the end of the period of 2 years beginning on the day on which this Act receives the Royal Assent.
Section 10 commences on the day on which this Act receives the Royal Assent.
PART 2 —AMENDMENTS OF THE SEX DISCRIMINATION ACT 1984
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(a) in the event of the member's death—to the estate of the deceased or to someone other than the deceased; or
(b) in the event of the member's physical or mental incapacity—to the member or to someone other than the member;
"(4) Where a person exercises a discretion in relation to the payment of a superannuation benefit to or in respect of a member of a superannuation fund, it is unlawful for the person to discriminate, in the exercise of the discretion, against the member or another person on the ground, in either case, of the sex or marital status of the member or that other person.
"(5) Subsection (4) does not apply if section 41b applies to that member in respect of that fund.
"(6) In this section:
7. Section 40 of the Principal Act is amended:
(a) by omitting paragraphs (1) (a) and (b);
(b) by omitting subsections (2), (3) and (4) and substituting the following subsections:
"(2) Nothing in Division 1 or 2 affects anything done by a person in direct compliance with any of the following as in force on 1 August 1984:
(a) the
Gift Duty Assessment Act 1941 ;(b) the operation of:
(i) the definition of 'pensioner' in subsection 4 (1); or
(ii) the definition of 'concessional beneficiary' in subsection 84 (1);
of the
National Health Act 1953 ;(c) the
Income Tax Assessment Act 1936 ;(d) the
Income Tax (International Agreements) Act 1953 ;
(e) the
Papua New Guinea (Members of the Forces Benefits) Act 1957 ;(f) the
Sales Tax (Exemptions and Classifications) Act 1935 ;(g) the
Seamen's War Pensions and Allowances Act 1940 ;(h) the
Social Security Act 1947 ;(i) the
Taxation (Unpaid Company Tax) Assessment Act 1982 ;(j) the
Social Services Act 1980 of Norfolk Island."(3) Nothing in Division 1 or 2, as applying by reference to section 6, affects anything done by a person in direct compliance with any regulations, rules, by-laws, determinations or directions made under the
Gift Duty Assessment Act 1941 , theIncome Tax Assessment Act 1936 or theSales Tax (Exemptions and Classifications) Act 1935. "(4) For the period of 3 years beginning on the commencement of this subsection, nothing in Division 1 or 2, as applying by reference to section 6, affects anything done by a person for the purposes of the administration of:
(a) a scheme established under the
Student Assistance Act 1973 ; or(b) a current special educational assistance scheme within the meaning of that Act.".
"40a. (1) The Minister must review the operation of subsections 40 (2) and (3) before 1 June 1996.
"(2) The review must include, but need not be limited to, a recommendation as to whether subsections 40 (2) and (3) should be repealed.
"(3) The Minister must cause copies of the review to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the review.".
"41. (1) Nothing in Division 1 or 2 makes discrimination by one person (in this subsection called the
(a) the discrimination is on the ground of the client's sex; and
(b) the discrimination is in the terms on which an insurance policy is offered to, or may be obtained by, the client; and
(c) the discrimination is based on actuarial or statistical data from a source on which it is reasonable for the insurer to rely; and
(d) the discrimination is reasonable having regard to those data and any other relevant factors.
"(2) In this section:
"41a. (1) Nothing in Division 1 or 2 makes discrimination in relation to a superannuation fund by one person (in this subsection called the
(a) the discrimination is on the ground of the aggrieved person's sex or marital status; and
(b) the discrimination arises only because of one or more of the following:
(i) the superannuation fund conditions include a provision that:
(a) is based on actuarial or statistical data from a source on which it is reasonable for the discriminator to rely; and
(b) is reasonable having regard to those data and any other relevant factors;
(ii) in the case of a member who has no spouse (whether legal or de facto) or has no child—the superannuation fund conditions:
(a) do not provide for superannuation benefits in the event of the member's death; or
(b) provide for less generous superannuation benefits in the event of the member's death; or
(c) do not provide for superannuation benefits to someone other than the member in the event of the member's physical or mental incapacity; or
(d) rovide for less generous superannuation benefits to someone other than the member in the event of the member's physical or mental incapacity;
(iii) the superannuation fund conditions include a provision that relates to:
(a) the vesting in members or other persons of benefits arising directly or indirectly from amounts contributed to the fund; or
(b) the preservation of benefits arising directly or indirectly from amounts contributed to the fund; or
(c) the portability of benefits arising directly or indirectly from amounts contributed to another superannuation fund;
if the inclusion of that provision results in only indirect discrimination against the aggrieved person on the ground of that person's sex or marital status;
(iv) the superannuation fund conditions include a provision that confers particular benefits, or more generous benefits, only on a person to whom subsection 41b (3) or (4) applies.
"(2) For the purposes of this section, discrimination against a person on the ground of the person's sex or marital status is taken to be indirect if paragraph 5 (1) (b) or (c), subsection 5 (2), paragraph 6 (1) (b) or (c) or subsection 6 (2) applies to the discrimination.
"(3) This section does not apply to a person in respect of a superannuation fund if subsection 41b (3) or (4) applies to that person.
"(4) In this section:
(a) the person was a member of a superannuation fund immediately before the commencement of this section; and
(b) unless the Commission has, under section 44, granted an exemption from the operation of this paragraph—before the commencement of this section, the person:
(i) had been given an option to obtain non-discriminatory benefits; and
(ii) had not exercised the option in accordance with subsection (5).
"(2) This section applies to a person (in this section also called the
(a) at any time before the commencement of this section, the person became a member of a superannuation fund; and
(b) at a later time before that commencement, the person ceased to be a member of the fund.
"(3) Nothing in Division 1 or 2 makes discrimination against the member unlawful if the discrimination:
(a) is on the ground of the member's sex or marital status; and
(b) is in the superannuation fund conditions.
"(4) Nothing in Division 1 or 2 makes discrimination against a person unlawful if:
(a) the person derives, or would, apart from the discrimination, derive, benefits because the member is or was a member of the superannuation fund; and
(b) the discrimination:
(i) is on the ground of the sex or marital status of the member or the person; and
(ii) is in the superannuation fund conditions.
"(5) If the administrators of the fund required the member to exercise the option referred to in subsection (1) before the end of a particular period, subsection (1) does not apply unless that period was at least 2 months long and ended before the commencement of this section.
"(6) For the purposes of this section, the member is taken to obtain non-discriminatory benefits where, if section 41a applied to the member in respect of the fund, the superannuation fund conditions that relate to the benefits would not give rise to discrimination that is unlawful under Division 1 or 2.".
10. Section 44 of the Principal Act is amended:
(a) by omitting from subsection (1) "a specified provision of Division 1 or 2" and substituting "a provision of Division 1 or 2, or paragraph 41b (1) (b), as specified in the instrument";
(b) by omitting from subsection (3) "exemption or further
exemption" and substituting "exemption, or further exemption, from the operation of a provision of Division 1 or 2".
11. In this Part,
"Principal Act" means theMarriage Act 1961 2 .
Section 11 of the Principal Act is repealed and the following section is substituted:
"11. Subject to section 12, a person is of marriageable age if the person has attained the age of 18 years.".
13. Section 12 of the Principal Act is amended:
(a) by omitting subsection (1) and substituting the following subsection:"(1) A person who has attained the age of 16 years but has not attained the age of 18 years may apply to a Judge or magistrate in a State or Territory for an order authorising him or her to marry a particular person of marriageable age despite the fact that the applicant has not attained the age of 18 years.";
(b) by omitting from paragraph (2) (a) "or 14 years, as the case may be".
15. Section 78 of the Principal Act is amended:
(a) by omitting from subsection (1) "the man about to be married" and substituting "1 party to the intended marriage (in this section called the
'non-Australian' )";(b) by omitting from paragraphs (2) (a) and (b) "the man about to be married" and substituting "the non-Australian".
(2) If, before the commencement of this section:(a) notice of an intended marriage had been received:
(i) by the authorised celebrant under section 42 of the Principal Act; or
(ii) by the marriage officer under section 66 of the Principal Act; and
(b) the marriage had not been solemnised;
the Principal Act applies as if sections 12 and 13 of this Act had not been enacted.
18. In this Part,"Principal Act" means theWar Gratuity Act 1945 3 .
19. Section 2 of the Principal Act is amended:
(a) by omitting "wife, widow" from the definition of "dependants" and substituting "spouse";
(b) by omitting "his" (twice occurring) from the definition of "dependants" and substituting "his or her";
(c) by omitting "five," from the definition of "month";
(d) by omitting the definition of "death due to war service" and substituting the following definition:
"
'death due to war service' means death of a member which occurred in circumstances in which:
(a) the Commonwealth is liable to pay pension under Part II of the
Veterans' Entitlements Act 1986 ; or(b) the Commonwealth would be liable to pay pension under that Part if pension were payable to a female veteran's spouse;";
(e) by inserting the following definition:"
'spouse' in relation to a member, includes:
(a) a de facto spouse of the member; or
(b) a widow or widower of the member; or
(c) a person who was a de facto spouse of the member immediately before the member's death;".
20. Section 14 of the Principal Act is amended:
(a) by omitting from subsection (1) "widow or widower" and substituting "spouse";
(b) by omitting from subsection (1) "his" (twice occurring) and substituting "the member's";
(c) by omitting from subsection (3) "he" and substituting "the member".
21. Section 17 of the Principal Act is amended:
(a) by omitting from subsection (1) "he" and substituting "the deceased member";
(b) by omitting from paragraph (l) (b) "his" and substituting "the deceased's";
(c) by omitting from subsection (1) "either the widow or widower" and substituting "the spouse".
"or (b) the spouse of a member; or
(c) the widowed mother or widowed father of an unmarried deceased member; or
(d) the mother or father of a deceased member, or an older sister or brother of a deceased member who acted as a parent to the member, if a prescribed authority is satisfied that she or he was totally dependent on the member at the time of the member's death or is in needy circumstances; or".
23. The Principal Act is further amended as set out in the Schedule.
SCHEDULE Section 23
FURTHER AMENDMENTS
Repeal the section.
After "his", insert "or her".
Omit "his" (twice occurring), substitute "the member's".
Omit "his", substitute "the member's".
Omit "his", substitute "the member's".
After "his" (twice occurring), insert "or her".
After "he", insert "or she".
Omit "his" (wherever occurring), substitute "the member's".
Omit "he", substitute "the member".
Omit "his" (twice occurring), substitute "the member's".
Omit "his", substitute "the member's".
Omit "he", substitute "the member".
Omit "his" (twice occurring), substitute "the member's".
Omit "he", substitute "the member".
Omit "he", substitute "the member".
Omit "his", substitute "the member's".
Omit "him" (twice occurring), substitute "the member".
Omit "his" (twice occurring), substitute "the member's".
After "his", insert "or her".
After "his" (twice occurring), insert "or her".
After "his", insert "or her".
Omit "his", substitute "the member's".
Omit "he", substitute "the member".
Omit "he" (twice occurring), substitute "the member".
Omit "his" (twice occurring), substitute "the Minister's".
After "himself (twice occurring), insert "or herself.
After "his" (wherever occurring), insert "or her".
After "him", insert "or her"
After "he" (wherever occurring), insert "or she".
1. No. 4, 1984, as amended. For previous amendments, see No. 72, 1984; No. 65, 1985; Nos. 76 and 126, 1986; Nos. 38, 75, 80 and 87, 1988 and No. 115, 1990.
2. No. 12, 1961, as amended. For previous amendments, see No. 93, 1966, Nos. 35 and 216, 1973; Nos. 37 and 209, 1976; No. 2, 1982; No. 7, 1985; No. 38, 1988 and No. 115, 1990.
3. No. 16, 1945, as amended. For previous amendments, see No. 41, 1947; No. 93, 1966; No. 37, 1976; and No. 28, 1986.
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House of Representatives on 6 March 1991
Senate on 18 April 1991
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