Maternity Leave (Commonwealth Employees) Amendment Regulations 2018

Administered by Department of the Prime Minister and Cabinet

Legislation au F2018L00679 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Maternity Leave (Commonwealth Employees) Amendment Regulations 2018

 

Issued by the authority of the Minister Assisting the Prime Minister for the Public Service

 

Maternity Leave (Commonwealth Employees) Act 1973

 

Maternity Leave (Commonwealth Employees) Amendment Regulations 2018

The Maternity Leave (Commonwealth Employees) Act 1973 (the Act) makes provision for maternity leave for employees of the Commonwealth and certain other persons. Subsection 5(1) of the Act provides that the Act applies to such persons employed by the Commonwealth as are prescribed.

Section 15 of the Act provides that the Governor‑General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act. The Maternity Leave (Commonwealth Employees) Regulations 2017 (the Regulations) prescribe persons to whom the Act applies including persons referred to in Schedule 1 to the Regulations.

Purpose of the Maternity Leave (Commonwealth Employees) Amendment Regulations 2018

On 1 July 2018, the Intelligence Service Amendment (Establishment of the Australian Signals Directorate) Act 2018 commences. This will separate the Australian Signals Directorate from the Department of Defence and establish it as an independent statutory authority within the Defence Portfolio.

At that time, employees of the Australian Signals Directorate will no longer be employed under the Public Service Act 1999, but the Director-General will adopt the principles of that Act to the extent they are consistent with the effective performance of the Australian Signals Directorate.

The purpose of the Maternity Leave (Commonwealth Employees) Amendment Regulations 2018 (the amending Regulation) is to continue to allow employees of the Australian Signals Directorate to be covered under the Act.

Commencement

The amending Regulation will commence on 1 July 2018.

Consultation

The Department of Defence and the Australian Signals Directorate were consulted on the proposed amending Regulation and agree that the amendment continues existing arrangements.

The Office of Best Practice Regulation has indicated that no regulatory impact statement was required.

The Regulation was drafted by the Office of Parliamentary Counsel.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Maternity Leave (Commonwealth Employees) Amendment Regulations 2018

The Regulations are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Regulations

The purpose of the Regulations is to ensure that coverage of the Maternity Leave (Commonwealth Employees) Act 1973 continues to apply to employees of the Australian Signals Directorate from 1 July 2018.

Human rights implications

This amending Regulation does engage the human right to maternity leave contained in article 10(2) of the International Covenant on Economic, Social and Cultural Rights and article 11(2)(b) of the Convention on the Elimination of All Forms of Discrimination Against Women.

This Legislative Instrument advances human rights by continuing to extend the provisions of the Maternity Leave (Commonwealth Employees) Act 1973 to the employees in the Australian Signals Directorate once it becomes an independent statutory authority within the Defence Portfolio as otherwise they would no longer be covered by the provisions of that Act.

Conclusion

This amending Regulation is compatible with human rights because it ensures that employees of the Australian Signals Directorate are covered by the right to maternity leave.


Attachment A – Provisions in the Maternity Leave (Commonwealth Employees) Amendment Regulations 2018

 

Section 1 – Name

This section provides for the name of the instrument: Maternity Leave (Commonwealth Employees) Amendment Regulations 2018.

Section 2 – Commencement

This section provides that the instrument commences on 1 July 2018.

Section 3 – Authority

This section provides that the instrument is made under the Maternity Leave (Commonwealth Employees) Act 1973.

Section 4 – Schedules

This section provides that each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the instrument has effect according to its terms.

Schedule 1 – Amendments

This Schedule inserts an item at the end of the table in Schedule 1 to the Maternity Leave (Commonwealth Employees) Regulations 2017 to include a person employed under section 38A of the Intelligence Services Act 2001.

 

Overview

The Maternity Leave (Commonwealth Employees) Amendment Regulations 2018 were introduced to address the gap in coverage for employees of the Australian Signals Directorate (ASD) after its establishment as an independent statutory authority within the Defence Portfolio on 1 July 2018. This separation from the Department of Defence under the Intelligence Service Amendment (Establishment of the Australian Signals Directorate) Act 2018 meant that ASD employees would no longer be covered by the Public Service Act 1999. To ensure these employees continue to be eligible for maternity leave under the Maternity Leave (Commonwealth Employees) Act 1973, the amending regulations were enacted by the Minister Assisting the Prime Minister for the Public Service. The primary objective of these regulations is to maintain the existing arrangements for maternity leave entitlements for ASD employees, thereby upholding their rights under international human rights instruments, such as the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Discrimination Against Women.

Scope and Application

The Maternity Leave (Commonwealth Employees) Amendment Regulations 2018 amends the existing Maternity Leave (Commonwealth Employees) Regulations 2017 to ensure that the Maternity Leave (Commonwealth Employees) Act 1973 continues to apply to employees of the Australian Signals Directorate from 1 July 2018. The Act itself applies to employees of the Commonwealth and certain other persons as prescribed under the Act and the Regulations. The purpose of the amending Regulations is to address the legislative change resulting from the Intelligence Service Amendment (Establishment of the Australian Signals Directorate) Act 2018, which will establish the Australian Signals Directorate as an independent statutory authority within the Defence Portfolio. Without the amendment, employees of the Australian Signals Directorate would no longer be covered by the Act. The amending Regulations will ensure that these employees continue to have the same maternity leave entitlements as other Commonwealth employees, thereby maintaining the human right to maternity leave for these individuals. The amending Regulations were drafted under the authority of the Minister Assisting the Prime Minister for the Public Service and are compatible with human rights as they do not exclude any eligible persons from the benefits of the Act.

Key Provisions

The main operative sections of the Maternity Leave (Commonwealth Employees) Amendment Regulations 2018 (section 2) specify that these regulations will commence on 1 July 2018. The authority for these regulations is derived from the Maternity Leave (Commonwealth Employees) Act 1973 (section 3). Section 4 of the regulations explains that the instruments specified in the schedules are amended or repealed as outlined in the applicable items of those schedules, while other items have effect according to their terms. Schedule 1 includes an amendment to the table in Schedule 1 of the Maternity Leave (Commonwealth Employees) Regulations 2017, inserting a new item to cover persons employed under section 38A of the Intelligence Services Act 2001. The regulations impose obligations on the parties or entities they govern by ensuring that the provisions of the Maternity Leave (Commonwealth Employees) Act 1973 continue to apply to employees of the Australian Signals Directorate following its establishment as an independent statutory authority within the Defence Portfolio. By amending the Maternity Leave (Commonwealth Employees) Regulations 2017, the amending regulations maintain the coverage of maternity leave entitlements for employees who transition from the Department of Defence to the Australian Signals Directorate. The regulations mandate that the right to maternity leave is preserved for these employees, ensuring consistency in their employment benefits despite the structural changes. Under the Maternity Leave (Commonwealth Employees) Amendment Regulations 2018, there are no specific offences, penalties, or civil/criminal consequences for breach as the regulations themselves do not create new offences or specify penalties. However, non-compliance with the Act's provisions could lead to legal challenges regarding the entitlements of employees, as the regulations are designed to ensure that the Act's protections continue to apply. Given that the regulations aim to maintain existing entitlements, any failure to adhere to the provisions of the Act by the employer could result in legal actions by affected employees seeking enforcement of their maternity leave rights.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.