EXPLANATORY STATEMENT
Sex Discrimination (Operation of Legislation) (No. 2) Regulations
Statutory Rules 1987 No.158
Issued by the Authority of the Attorney-General
Section 116 of the Sex Discrimination Act 1984 (“the Act”) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters that are required or permitted by the Act to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Divisions 1 and 2 of Part II of the Act provide that it is unlawful to discriminate against a person on the ground of sex, marital status or pregnancy in certain areas of activity. Paragraphs 40(1)(a) and 40(1)(b) in Division 4 of Part II of the Act are exemption provisions which provide that nothing in Division 1 or 2 of Part II affects anything done by a person in direct compliance with -
(a) any other Act, any State Act, or any law of a Territory in force at the commencement of the Sex Discrimination Act; or
(b) a regulation, rule, by-law, determination or direction in force at the commencement of the Sex Discrimination Act made under an Act, State Act or law of a Territory.
Sub-section 40(2) provides that, except to the extent that regulations made for the purposes of sub-section 40(2) otherwise provide, paragraphs 40(1)(a) and 40(1)(b) shall cease to be in force at the expiration of 2 years after the commencement of the Act. The date of the commencement of the Act was 1 August 1984. Sub-section 40(3) provides that regulations made for the purposes of sub-section 40(2) may make provision in relation to the application of paragraphs 40(1)(a) and 40(1)(b) either generally or in relation to specified legislation.
Three sets of regulations were made under section 116 of the Act to continue, for a limited period after the expiration of 2 years after the commencement of the Act, the application of paragraphs 40(1)(a) and 40(1)(b) of the Act in relation to certain Commonwealth, State and Territory legislation. These are:
• the Sex Discrimination (Operation of Legislation) (No. 1) Regulations which extend the exemptions in respect of certain Commonwealth and Territory legislation until 28 July 1988;
• the Sex Discrimination (Operation of Legislation) (No. 2) Regulations which extend the exemptions in respect of certain Commonwealth, State and Australian Capital Territory legislation until 31 July 1987; and
• the Sex Discrimination (Operation of Legislation) (No. 3) Regulations which extend the exemptions in respect of certain legislation of the State of New South Wales until 31 July 1987.
The new Sex Discrimination (Operation of Legislation) (No. 2) Regulations repeal the former Sex Discrimination (Operation of Legislation) (No.2) Regulations (“the former (No. 2)
Regulations”) and the Sex Discrimination (Operation of Legislation) (No. 3) Regulations (“the former (No. 3) Regulations”) and incorporate certain of the exemptions formerly included in the (No. 2) and the (No. 3) Regulations.
Effect of Former Regulations
The former (No.2) Regulations extended the exemption -
(a) in paragraph 40(1)(a) of the Act in respect of certain Commonwealth Acts listed in Part I of the Schedule to the former (No. 2) Regulations, certain State Acts listed in Schedule 1 and Part II of Schedule 2 to the former (No. 2) Regulations and all Acts of the State of Western Australia and, under Part III of Schedule 2, in respect of all laws in force in the Australian Capital Territory under section 6 of the Seat of Government Acceptance Act 1909: and
(b) in paragraph 40(1)(b) of the Act in respect of all regulations, rules, by-laws, determinations or directions made under an Act or law specified in Schedule 2 to the former (No.2) Regulations or made under an Act of the State of Western Australia, and regulations made under the Industrial Safety, Health and Welfare Act 1981 of the State of Victoria and continued in operation by virtue of paragraph 3(2)(b) of the Occupational Health and Safety Act 1985 of that State,
until 31 July 1987. The exemptions related only to those laws as they were in force at the commencement of the Act.
The former (No.3) Regulations extended the exemption in paragraph 40(1)(a) of the Act in respect of 11 Acts of the
State of New South Wales, which were listed in the Schedule to those Regulations and as those Acts were in force at the commencement of the Act, until 31 July 1987.
The New Regulations
The new regulations include a separate regulation to continue certain exemptions for the legislation of each jurisdiction and to extend those exemptions from the expiry date for those exemptions of 31 July 1987 (as was provided for in the former (No. 2) and former (No. 3) Regulations) for periods of between 6 months and 2 years, as described below.
The effect of the new Regulations is, therefore, to continue certain exemptions provided for in the former (No. 2) Regulations and former (No. 3) Regulations. The changes to the exemptions are, as follows:
• 92 Commonwealth Acts were listed in Part I of Schedule 2 to the former (No. 2) Regulations, and subordinate legislation and instruments made under those Acts were also exempt; 18 of those 92 Acts are included in the new Regulations and the exemption for those 18 Acts and subordinate legislation and instruments made under those 18 Acts is extended until 31 July 1988;
• 5 New South Wales Acts were listed in Part II of Schedule 2 to the former (No. 2) Regulations and related subordinate legislation and instruments were also exempt; certain provisions of 4 of those 5 Acts and specified regulations made under 3 of those Acts are included in the new Regulations and the exemption for the provisions of those Acts and those regulations is extended until 31 July 1988;
• 11 New South Wales Act were listed in the Schedule to the former (No. 3) Regulations; certain provisions of 8 of those Acts are included in the new Regulations and the exemption for those provisions is extended:
- until 31 January 1988 for the specified provisions of 2 of those Acts;
- until 31 July 1988 for the specified provisions of 2 of those Acts; and
- until 31 July 1989 for the specified provisions of 4 of those Acts;
• 4 Victorian Acts were listed in Schedule 1 to the former (No. 2) Regulations; one of these Acts is included in the proposed Regulations and the exemption of that Act is extended until 31 July 1988;
• 4 Victorian Acts were listed in Part II of Schedule 2 to the former (No. 2) Regulations, subordinate legislation and instruments made under those Acts was also exempt and an extra set of regulations was exempt by regulation 4(2)(b) of the former (No. 2) Regulations; one regulation made under one of the 4 Acts and one regulation, being a regulation included in those extra regulations, are included in the new regulations and the exemption for those 2 regulations is extended until 31 January 1988;
• 3 Queensland Acts were listed in Part II of Schedule 2 to the former (No. 2) Regulations and subordinate legislation and instruments made under those Acts was also exempt; one of those Acts and
subordinate legislation and instruments made under that Act are included in the new Regulations and the exemption for that Act and the related subordinate legislation and instruments is extended until 31 July 1988;
• all Western Australian Acts were exempt by virtue of regulation 3(1)(b), and subordinate legislation and instruments made under those Acts were exempt by virtue of regulation 4(2)(aa), of the former (No. 2) Regulations; 3 Acts and 4 sets of regulations are included in the new Regulations and the exemption for those 3 Acts and 4 sets of regulations is extended until 31 July 1988;
• both of the 2 Tasmanian Acts listed in Part II of Schedule 2 to the former (No. 2) Regulation, and related subordinate legislation and instruments made under those Acts and also exempted by virtue of former regulation 4(2)(a), are included in the new Regulations and the exemption for that Act and the related subordinate legislation and instruments is extended until 31 July 1988;
• all laws in force in the Australian Capital Territory under section 6 of the Seat of Government Acceptance Act 1909 were included in Part III of Schedule 2 to the former (No .2) Regulations and related subordinate legislation and instruments made under those laws were also exempt by virtue of former regulation 4(2)(a); of those laws, which include Imperial laws and New South Wales laws in force in the Territory, the Imperial laws are included in the new Regulations but only certain sections of 3 of the New South Wales Acts are included - the exemption for this legislation is extended until 31 July 1988.
Regulation 1 provides for the citation of the Regulations.
Sub-regulation 2(1) defines the expression “the Act” as used in the Regulations, to mean the Sex Discrimination Act 1984. Sub-regulation 2(2) explains that references to Acts (other than the Sex Discrimination Act) and references to State Acts mean only those Acts as in force at the commencement of the Sex Discrimination Act. Accordingly, the references to those other Acts and State Acts are only to be read as referring to those other Acts and State Acts as in force at 1 August 1984. Sub-regulation 2(3) makes similar provision to sub-regulation 2(2) in regard to subordinate legislation and instruments referred to in the Regulations.
Sub-regulation 3(1) provides for exemptions for certain Commonwealth Acts listed in Schedule 1 to the Regulations until 31 July 1988. Sub-regulation 3(2) similarly exempts from the operation of the Sex Discrimination Act, subordinate legislation and instruments made under the Acts listed in Schedule 1 until 31 July 1988.
Sub-regulation 4(1) provides for exemptions for provisions of certain New South Wales Acts, as follows:
• by virtue of paragraph 4(1)(a), for the provisions of Acts listed in Part I of Schedule 2 until 31 January 1988;
• by virtue of paragraph 4(1)(b), for the provisions of Acts listed in Part II of Schedule 2 until 31 July 1988; and
• by virtue of paragraph 4(1)(c), for the provisions of Acts listed in Part III of Schedule 2 until 31 July 1989.
Sub-regulation 4(2) similarly exempts from the operation of the Sex Discrimination Act, until 31 July 1988, the regulations listed in paragraphs 4(2)(a)-(e).
Sub-regulation 5(1) provides for an exemption from the operation of the Sex Discrimination Act in respect of the Local Government Act 1958 of Victoria until 31 July 1988. Proposed sub-regulation 5(2) similarly exempts from the operation of the Sex Discrimination Act, the regulations listed in paragraphs 5(2)(a) and (b) until 31 January 1988.
Sub-regulation 6(1) provides for an exemption from the operation of the Sex Discrimination Act in respect of The Factories and Shops Act of 1960 of Queensland until 31 July 1988. Sub-regulation 6(2) similarly exempts from the operation of the Sex Discrimination Act, subordinate legislation and instruments made under the Queensland Factories and Shops Act until 31 July 1988.
Sub-regulation 7(1) provides an exemption from the operation of the Sex Discrimination Act for the Western Australian Acts listed in paragraphs 7(1)(a)-(c) until 31 July 1988.
Sub-regulation 7(2) similarly exempts from the operation of the Sex Discrimination Act, the regulations referred to in paragraphs 7(2)(a)-(d) until 31 July 1988.
Sub-regulation 8(1) provides for exemptions for 2 Tasmanian Acts from the operation of the Sex Discrimination Act until 31 July 1988. Sub-regulation 8(2) similarly exempts from the operation of the Sex Discrimination Act, subordinate legislation and instruments made under those 2 Acts until 31 July 1988.
Regulation 9 provides for exemptions from the operation of the Sex Discrimination Act for certain laws in force in the Australian Capital Territory. Regulation 9 extends that
exemption until 31 July 1988 for Imperial laws in force in the Territory under section 6 of the Seat of Government Acceptance Act 1909 and for certain provisions of 3 New South Wales Acts in force in the Territory under section 6 of the Seat of Government Acceptance Act 1909.
Regulation 10 repeals the former Sex Discrimination (Operation of Legislation) (No. 2) Regulations. The references to the 2 Statutory Rules in regulation 10 are references to the (No. 2) Regulations as originally made and to amendments made in 1987 to the (No. 2) Regulations. Regulation 11 effects a similar repeal of the Sex Discrimination (Operation of Legislation) (No. 3) Regulations.
Reasons for Extension of Exemptions
(a) Commonwealth Legislation
Ninety-two Commonwealth Acts and related subordinate legislation and instruments were exempt until 31 July 1987 under the former (No. 2) Regulations. This legislation is administered by the Commissioner of Taxation. An extension was sought for 18 of those Acts and related subordinate legislation and instruments to enable completion by the Australian Taxation Office of its review of discriminatory provisions in this legislation. Whilst this review has been delayed, it is now expected to be completed by the end of July 1987. Recommendations from the review will then be put to Government so that decisions and necessary action can be taken as soon as possible after that date.
(b) New South Wales Legislation
(i) Extension to 31 January 1987
Section 26 of the Closer Settlement Act 1904 and section 277 of the Crown Lands Consolidation Act 1913 are discriminatory
on the grounds of sex and marital status. The extension of the exemption for these Acts was sought by the New South Wales Government to enable introduction and passage of legislation designed to repeal these discriminatory provisions.
(ii) Extension to 31 July 1988
The sections of the Coal Mines Regulation Act, the Mines Inspection Act and the Mines Rescue Act and the regulations made thereunder provide for restrictions on employment of women in mines. Extensions of these exemptions for 12 months were sought by the New South Wales Government to enable the introduction and passage of legislation which will allow women to work underground in mines. It is proposed that implementation of this legislation, once passed, will be delayed to enable sufficient time for the industry to make necessary adjustments to accommodate the reforms.
Section 36 of the Factories, Shops and Industries Act and regulation 2 of the Lead Regulations provide for discrimination on the ground of sex in manual handling limits and in lead processing areas in factories. The extensions of the exemptions for 12 months were sought by the New South Wales Government pending the outcome of current research into these areas by that Government’s Occupational Health, Safety and Rehabilitation Council and the National Occupational Health and Safety Commission (“Worksafe Australia”). In regard to manual handling, the Council is currently studying the draft Code of Practice released for public comment by Worksafe Australia. Worksafe Australia is still developing a draft Code of Practice on lead processing.
Other discriminatory provisions of the Factories, Shops and Industries Act and discriminatory provisions in the Industrial Arbitration Act and the Miners’ Accident Relief (Supplemental) Act were to be dealt with by the Miscellaneous Acts (Sex
Discrimination) Amendment Bill 1987. However, this Bill has been delayed in its passage through the New South Wales Parliament and the extensions for 12 months were sought by the New South Wales Government to enable the passage of the Bill and the entry into force of its provisions.
The provisions of the Electroplating Regulations and the Factories (Health and Safety) General Regulations relate to the unequal provision of amenities such as showers, sanitary conveniences and rest facilities for males and females in factories. Problems associated with the amendment of these provisions are currently being investigated by the New South Wales Occupational Health, Safety and Rehabilitation Council. Extensions of these exemptions for 12 months were sought by the New South Wales Government to enable time for the Council to report on its investigations.
(iii) Exemptions until 31 July 1989
The relevant sections of the Co-operation Act, Permanent Building Societies Act and Credit Union Act, which are in similar terms, provide that if a married member under the age of 18 years borrows money from a credit union or society, or executes a mortgage in favour of a society, then the member is bound as if he or she were 18 years of age. The provisions constitute an exception to the law of contract which protects minors to enable building societies to make loans with confidence and to allow married minors to have the benefit of housing. The New South Wales Government sought an indefinite extension of the exemption for these provisions on the basis that, whilst the repeal of these provisions would remove any discrimination against unmarried persons under the age of 18 years, it would jeopardise the chances of married minors securing finance to purchase a home.
Part V of the Landlord and Tenant (Amendment) Act, which deals with protected tenants, provides safeguards against evictions of protected persons who are certain members of the Forces and their female dependants. In 1985, this Act was amended by the Landlord and Tenant (Protected Tenancies) Amendment Act which provides that no new protected tenancies can be created after 1 January 1986. The number of protected tenancies is currently falling. The New South Wales Government sought an indefinite exemption for this Act to preserve the rights of existing tenants.
The two year extension of these exemptions is proposed on the basis that, although there is a reasonable prospect that the need for these exemptions will continue for longer than that period, the Commonwealth wishes to keep all exemptions under regular review.
(c) Victorian Legislation
(i) Extension to 31 January 1988
Regulation 6 of the Occupational Health and Safety (General Safety) Regulations 1986 and regulation 23 of the Labour and Industry (Lead Processes) Regulations 1966 deal with manual handling (prohibition of females lifting certain weights) and lead processing (females not to be employed in lead processing). The Victorian Government advises that the Victorian Occupational Health and Safety Commission has made substantial progress in developing an approach to these issues which provides acceptable and appropriate health and safety guidelines while removing gender discrimination. An extension of 6 months for the exemptions for these 2 regulations was sought by the Victorian Government to allow time for the guidelines to be finalised and appropriate replacement regulations to be made.
(ii) Extension to 30 July 1988
The Victorian Government advises that it proposes to replace the Local Government Act 1958 with a new Local Government Act which contains none of the discriminatory provisions found in the present Act. The new Local Government Bill has been introduced into the Victorian Parliament and is scheduled for passage in the Spring session later this year. However, as the present Act is not expected to be repealed until next year, the Victorian Government has sought a 12 month extension of the exemption for the current Local Government Act to enable time for passage of the new legislation and its entry into force.
(d) Queensland Legislation
The Queensland Factories and Shops Act and related subordinate legislation contain a number of provisions restricting women’s employment, in particular, in manual handling and lead processing. An extension of 12 months of the exemption for this Act and related subordinate legislation and instruments was sought by the Queensland Government pending finalisation by the National Occupational Health and Safety Commission of its current work in developing codes of practice on manual handling and on lead processing.
(e) Western Australian Legislation
The Western Australian Equal Opportunity Act 1984 contains a similar provision to section 40 of the Commonwealth Sex Discrimination Act. The exemption for inconsistent legislation under the Western Australian Act expired on 8 July 1987 unless extended by regulations. The former (No. 2) Regulations exempted all Western Australian legislation so that that State’s review of its legislation to ascertain consistency with both its own Equal Opportunity Act and the Sex Discrimination Act could be carried out at the same time.
The Western Australian Government has identified 3 Acts and 4 sets of regulations which were unable to be amended or repealed prior to 8 July 1987 and for which it proposes to extend exemptions by regulations made under its own Act. That Government also sought an extension of the exemptions under the Commonwealth Act to enable such further action to be completed.
Of the continuing exemptions, discriminatory provisions of the Factories and Shops Act will be removed by the Occupational Health, Safety and Welfare Bill, which is currently before the Western Australian Parliament. Sub-section 82(2) of the Pearling Act (which prevents employment of women as pearl fishers) and the Child Welfare Act (which contains a number of discriminatory provisions including differing ages for girls and boys in entitlement to engage in certain employment and guardianship of female children) are still under review. Provisions of Health and Safety Regulations relating to discrimination in provision of sanitary conveniences are expected to be repealed by the end of 1987. Amendments to provisions of regulations restricting employment of women in lead processing work have been delayed pending the outcome of the current work of the National Occupational Health and Safety Commission in the development of standards for lead process workers.
(f) Tasmanian Legislation
The Tasmanian Government sought a 12 month extension of exemptions for 2 Acts and related subordinate legislation and instruments. This legislation restricts women’s employment. Particular matters of concern to the Tasmanian Government are restrictions of employment of women in lead processing and weight lifting work which are relevant to both Acts. Amendments to these provisions have been delayed pending the outcome of the current work of the National Occupational Health and Safety Commission in the development of standards for manual handling and for lead process workers.
(g) Australian Capital Territory Legislation
The former (No. 2) Regulations contained exemptions for all laws in force in the Australian Capital Territory under section 6 of the Seat of Government Acceptance Act 1909. The laws covered by that description are Imperial laws and New South Wales Acts in force at the date of commencement of that Act and continued in force by virtue of section 6 of that Act.
A 12 month extension for the Imperial laws covered by that exemption was sought to enable completion of the review of these laws. The primary focus of that review is to identify which Imperial laws remain in force in the Territory and which of those laws are appropriate for repeal or for retention as laws in force in the Territory. At the conclusion of that work, the remaining laws will be reexamined to confirm that any discriminatory provisions have been removed. The review of Imperial laws follows a similar review of the New South Wales laws in force in the Territory. Following completion of that review of New South Wales laws, provisions of 3 Acts were identified as possibly inconsistent with the Sex Discrimination Act and an extension for 12 months was sought to enable repeal or amendment of the relevant provisions.
The provisions identified were section 2 of the Inebriates Act 1900 (which prevents the making of an order to place an inebriate in an institution on the basis of production of a certificate of a medical practitioner who is, inter alia, a male relative of the superintendent of the institution) and section 3 of the Inebriates Act, as inserted by section 5 of the Inebriates (Amendment Act) 1909, (which, inter alia, regulates sentencing options of persons convicted of assaulting women). The Inebriates legislation is due to be repealed within the next 12 months. However, action to repeal the legislation has been delayed pending action in New South Wales to repeal its own Inebriates legislation. This is
because at present, for economic reasons, the Territory makes use of New South Wales facilities. The other provisions identified were in the Crimes Act 1900 as in force in the Territory. These provisions are section 44 (offence of failing to meet legal liability to maintain wife), section 45 (offence of wife desertion) and section 547 (capacity of husband to seek recognizance to keep the peace against another person in cases of apprehended violence by that other person, inter alia, against the husband’s wife). The extension for these provisions was sought on the basis that action will be taken to repeal or amend those provisions as soon as possible.
S.R. 192/87