EXPLANATORY STATEMENT
Sex Discrimination (Operation of Legislation) Regulations
Statutory Rules 1988 No. 183
Issued by the Authority of the Minister of Justice
Subject Sex Discrimination Act 1984
Sex Discrimination (Operation of Legislation) Regulations
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.
Prior to the present Regulations the Sex Discrimination (Operation of Legislation) (No. 1) Regulations (S.R. No. 191 of 1986) (‘the (No.1) Regulations’) extended the exemptions in respect of certain Commonwealth and Territory Legislation, and the Sex Discrimination (Operation of Legislation (No. 2) Regulations (S.R. No. 158 of 1987) (‘the (No.2) Regulations’) extended exemptions in respect of other Commonwealth legislation, and certain State and Territory legislation. The two sets of regulations were differentiated on the basis of the length of period of the exemptions, but as a result of further amendments both sets of exemptions expired virtually at the same time. The exemptions under the (No. 1) Regulations expired on 28 July 1988 and the exemptions under the (No. 2) Regulations expired on 31 July 1988, except in regard to certain New South Wales legislation which were exempted until 31 July 1989.
The purpose of these Regulations was to consolidate the two sets of regulations into one, to repeal those exemptions which were no longer necessary, and to establish a new uniform expiry date.
Regulation 1 - Citation
Citation of the Regulations
Regulation 2 - Commencement
Sub-regulation 2 (1) established the commencement date as 29 July 1988 for those regulations which were continued in operation by the exemptions in force under the (No. 1) Regulations.
Sub-regulation 2 (2) established the commencement date of 1 August 1988 for those regulations which were continued in force under the (No. 2) Regulations.
Regulation 3 - Interpretation
Sub-regulation 3(1) defines “the Act” as the Sex Discrimination Act 1984, and establishes 31 July 1989 as “the relevant day”, that is, the date upon which the exemptions provided for by these regulations will expire.
Sub-regulations 3(2) and 3(3) establish the date of commencement of the Sex Discrimination Act 1984 as the date for considering references to Acts, Ordinances, regulations, rules and so on referred to in these Regulations.
Regulation 4 - paragraph 40(1)(a) of the Act: Commonwealth legislation
Sub-regulation 4(1) provides that paragraph 40(1)(a) of the Act will continue in force in relation to the Acts and provisions of Acts specified in Part I of Schedule 1. These laws were previously contained in Part I of the Schedule to the (No. 1) Regulations. The legislation specified in the Part I of Schedule 1 is the following:
• Defence Act 1903. Part IV
Part IV of the Defence Act deals with liability to serve in the Defence Force in time of war. Section 60 provides that
the Governor-General may, by proclamation, call upon persons specified in section 59 (being male persons only) to serve in the Defence Force for the duration of the time of war. The provisions are discriminatory on the ground of sex.
Section 43 of the Sex Discrimination Act already provides an exemption in regard to employment, etc. of women in the Defence Force in combat and combat-related duties and in prescribed circumstances. Although the better view of the effect of section 43 of the Act is that it extends to persons called-up for service under Part IV of the Defence Act, the matter is not beyond argument. In these circumstances it is appropriate to ensure by means of regulations under section 40 of the Act that the operation of the call-up provisions should not be capable of being called into question under the Act.
Added to this, the Minister for Defence requested exemption of the Part so that a number of human rights issues raised by the provisions might be able to be examined. If, as a result of this examination, amendments are proposed to Part IV, their effect might be to enable removal of the exemption of Part IV from the Regulations.
• Defence (Re-establishment) Act 1965. Part III
Part III of this Act provides for the postponement, for up to 12 months after the completion of national service, of mortgage payments for which a national serviceman or a female dependant of a national serviceman is liable.
Even though these provisions are no longer operative, they remain on the statute book and would become operative if national service were revived.
The exemption of these provisions is consistent with the exemptions of Part IV of the Defence Act.
• Defence Service Homes Act 1918
The Defence Service Homes Act contains provisions which discriminate on the grounds of sex and marital status in the eligibility for benefits and in relief provisions. In addition the test for recognition of a de facto relationship (sub-section 54 (3A)-(3C)) may form the basis for discrimination on the ground of marital status.
It is proposed that a number of discriminatory provisions be removed in the near future. In the meantime continuation of the exemption is necessary to maintain the program.
• Marriage Act 1961, sections 11, 12, 77 and 78
Sections 11 and 12 are concerned with the matter of marriageable age. Section 11 of the Marriage Act sets the minimum marriageable age for females at 16 years and for males at 18 years. Section 12, in effect, allows a Judge or Magistrate by order to reduce the marriageable age by up to 2 years (i.e. to 14 and 16 years respectively). These provisions will be subjected to further policy review.
Sections 77 and 78 of the Act provide restrictions on the solemnisation of marriages overseas under Australian law by marriage officers (appointed by the Attorney-General) or by chaplains in the Defence Force.
Section 77 enables objection to the marriage of a woman, who is a subject or citizen of an overseas country, by the authorities of that country (para. 77(1)(c)). This provision is designed to take account of the situation where the consent of the government of a foreign country (particularly a Moslem country) may be necessary to the marriage in that country of a woman who is a subject or citizen of that country to a person who is a foreigner.
Section 78 provides that where the male party to the proposed marriage is not an Australian citizen or member of the Defence Force the marriage cannot be solemnized unless the celebrant is, broadly speaking, satisfied that the marriage will be recognised in the country of solemnization or the Attorney-General approves.
A number of overseas countries refer the validity of a marriage to the law of the home country of the husband. Section 78 reflects a long-standing policy, previously implemented in the Marriage (Overseas) Act 1955 and earlier Imperial legislation, designed to ensure that marriages do not take place which will be invalid because they are not recognised by overseas law.
Both sections 77 and 78 are designed to ensure the validity of overseas marriages in the countries in which these marriages are solemnised. Given these purposes, the continuation of these sections in operation, unaffected by the Sex Discrimination Act, is justified.
National Health Act 1953, sections 4, 73BA, 84 and the Schedule
The definitions of “pensioner” in section 4 and “concessional beneficiary” in section 84, by virtue of their reference to the age limits on the payment of pensions under the Social Security Act 1947, indirectly discriminate on the ground of sex by providing benefits to females at age 60 but to males only at age 65. There is clearly a need for these provisions to be in harmony with corresponding provisions in the Social Security Act. Since the Social Security Act is exempted in its entirety under sub-section 40(2) of the Sex Discrimination Act, it is necessary that these provisions of the National Health Act be similarly exempted.
Sections 73BA and the Schedule still require an exemption. The effect of s.73BA and the Schedule is that a contributor to a health benefit fund can be subjected to a 9 month waiting period before becoming eligible for benefits relating to an obstetric condition whereas the waiting period for eligibility for other benefits is only 2 months. The provision may constitute discrimination on the ground of pregnancy. However, unless health benefit funds can impose additional waiting periods in respect of obstetric conditions the funds may be rendered uneconomic by persons joining the plan just prior to giving birth.
• National Service Act 1951
This Act imposes an obligation to render national service and an obligation to register for such service. These obligations are imposed only on males. Even though obligations under the Act were terminated by the National Service Termination Act 1973, the National Service Act has not been repealed. The need for exemption of the Act by the Regulations is for similar reasons to those relating to the need for exemption of Part IV of the Defence Act.
• Student Assistance Act 1973
This Act establishes both the Tertiary Education Assistance Scheme (TEAS) and the Postgraduate Awards Scheme (PGA). Grants of Tertiary Education Assistance and Postgraduate Awards are made in accordance with the Student Assistance Regulations. These Regulations contain provisions discriminating on the grounds of sex and marital status in setting eligibility requirements for these schemes. The most important area of marital status discrimination is in conferral of benefits of ‘independent student’ status under TEAS and PGA automatically on married students. The Student Assistance Regulations also require single and ‘de
facto spouse’ students to meet additional criteria to qualify for the benefits of independent student status. This involves discrimination on the ground of marital status within the meaning of the Sex Discrimination Act.
The income tests and the associated independence criteria, although discriminatory, are considered an integral feature of AUSTUDY. It would be inequitable not to take into account the financial assistance that a student is likely to receive from his or her family, particularly those students who are financially better off. (Students may qualify as independent if they can establish that they are genuinely without parental support.) The Regulations made under the Act may also be discriminatory in that the independent living allowance is increased for independent students who have a dependent spouse. The allowance is not payable in respect of other dependents. Similarly a fares allowance is payable where an independent student has a dependent spouse to assist in up to three return journeys a year between a student’s permanent home and the education institution attended. The provision of post graduate awards may also be discriminatory in that additional allowances are paid in respect of a student’s spouse. Regulation 3 is also discriminatory in regard to the definition of spouse which includes a de facto spouse where the parties have a child or have lived together for at least two years.
• War Gratuity Act 1945
This Act contains a number of provisions which are discriminatory. The Act provides for payment of a war gratuity to members of the Defence Force in respect of war service (being service during or related to World War II).
Section 2 of the Act defines “dependants” to include wife, widow or children (including ex-nuptial children) of any member and persons wholly or partly dependent on the member for support. Thus the test of dependency is applied to de facto spouses but not to legal spouses.
The payment of a minimum war gratuity (in section 14) is available for widowers as well as widows and other dependants of a member. This extension to widowers is not reflected in certain other provisions of the Act (for example, sections 21 and 26).
Given the nature of these provisions, it is acknowledged that there would not be extensive costs involved if the discrimination in the Act was removed. However, the government’s policy is either to amend or repeal Acts or to preserve their operation under section 40. The alternative course, namely allowing the Sex Discrimination Act to overide the War Gratuity Act, is not considered acceptable because of the uncertainty about the results that would follow. As the nature of the War Gratuity Act is such that the payments will in time naturally cease, and there is little chance of new claims being made if the discrimination is removed, amendments were not considered to be justified.
Sub-regulation 4(2) provides that paragraph 40(1)(a) of the Act should continue in force and be exempt from application of the Act with respect to the Acts specified in Part II of Schedule 1. These Acts were previously contained in Schedule 1 of the (No. 2) Regulations.
Exemption in respect of eighteen Commonwealth Acts and related subordinate legislation and instruments was extended until 31 July 1988 under the former (No. 2) Regulations. This legislation is administered by the Commissioner of Taxation. The extension had been sought for 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 completed, further consultations with Government Departments is required and, it is now expected that this consultation process will be completed by July 1989. 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. The reasons for the exemption of the particular Commonwealth legislation are as follows:
• Gift Duty Assessment Act 1941
Amendment to this legislation is seen as inappropriate as gift duty is only levied and payable in respect of certain gifts made before 1 July 1979, and most assessments have already been made.
• Income Tax Assessment Act 1936
A number of amendments are proposed for the Budget Sittings of 1988. Moreover even following the removal of certain discriminatory provisions there will exist a continuing need for certain exemptions for specific sections in regard to this Act. A number of sections use the term ‘relative’. It is not proposed to amend the definition of the term ‘relative’ as its inclusion is necessary as an anti-avoidance measure. Another provision which may be discriminatory and which it is not proposed to remove is the definition of ‘resident’ as it is considered possible that the determination of a person’s residency on the basis of a person being the legal or de facto spouse of a person who contributes to the superannuation fund for government officers may be discriminatory. A large number of other provisions which it is proposed to maintain may also be discriminatory, for example,
(i) the use of the term ‘dependent’ (S23AA(1))
(ii) the use of ‘prescribed person’ (S23AD(3)) (which reflects the different ages by sex for age pensions under the Social Security Act.
(iii) the definition of the term “associate” (subsections 26AAB(14), 26AAC(14) and 51AD(1)).
• Income Tax (International Agreements) Act 1953. A further extension is required to enable further consultations with government departments. The term “resident” is defined in the same way as in the Income Tax Assessment Act.
• Sales Tax (Exemptions and Classifications) Act 1935
A number of provisions of this Act which are not to be amended are possibly discriminatory;
- sub-section 114(A)(7) (definition of ‘relation’, which may not include a de facto spouse)
- sub-sections 114B(3) and 114B(4)(a) and 114C(a) which reflect international agreements entered into by Australia, and which, if amended to be non-discriminatory could place Australia in breach of those agreements.
(An error was made in the (No 2) Regulations referring to the Act by a different year. That error has been removed in the Regulations.)
• Taxation (Unpaid Company Tax) Assessment Act 1982. This Act uses the term “associate” as that expression is used in relation to section 26AAB of the Income Tax Assessment Act 1953. To amend the use of the term may have some retrospective effect on tax liability and this would be undesirable. The Act creates a complex assessment process for a great number of liabilities and has been in operation for some four years. It is seen as undesirable to change the status quo.
Regulation 5 - paragraphs 40(1)(a) of the Act: Australian Capital Territory laws
Sub-regulation 5(1) provides that paragraph 40(1)(a) of the Act should continue in force and be exempt from application of the Act with respect to the Ordinance and the provision of the Ordinance specified in Part 1 of Schedule 2. These provisions were previously contained in the (No. 1) Regulations (1986), Schedule, Part II.
• Adoption of Children Ordinance 1965
A number of provisions in the Adoption of Children Ordinance and Adoption of Children Regulations were identified as raising possible inconsistencies with the Sex Discrimination Act. These were sections 16, 17, 18 and 24 of the Ordinance and Regulations 17 and 18 and Schedule 1 to the Regulations and provisions dependent on or related to these.
Unless exceptional circumstances exist, the Ordinance gives preference to adoption by married couples and differentiates between male and female adopters by requiring a male to be more than 18 years older than the child and a female to be more than 16 years older than the child. Consent for the adoption of illegitimate children is to be given by the mother or guardian. The Regulations provide for applications by married couples, and include forms which do not require certain information from women.
The policy issues involved in provisions that are possibly discriminatory are relevant to the whole Ordinance and the Department of Territories has conducted a review of the whole Ordinance. As the review has recently been completed, the exemption should be continued until comprehensive adoption legislation reform can be completed.
• Registration of Births, Deaths and Marriages Ordinance 1963
S.17 of the Ordinance remains the only discriminatory provision. S.17 deals with the registration of the father of a child where the parents are not married. The provision generally requires the mother’s consent to registration of the father’s name unless a court has declared the man to be the father. It is expected that s.17 will be repealed when a new Birth (Equality of Status) Ordinance is made in the next few months.
Sub-regulation 5(2) provides that paragraph 40(1)(a) of the Act should continue in force and be exempt from application of the Act with respect to all Imperial Acts and two provisions of New South Wales Acts relating to inebriates in force in the Australian Capital Territory under section 6 of the Seat of Government Acceptance Act 1909. These provisions were previously contained in the (No.2) Regulations, sub-regulation 9(1).
• Imperial laws
A 12 month extension for the Imperial laws covered by that exemption was made 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.
• New South Wales laws
Following completion of that review of New South Wales laws, provisions of 2 Acts were identified as possibly inconsistent with the Sex Discrimination Act and an extension for 12 months has been made to enable repeal or amendment of the relevant provisions. The provisions identified are 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.
Regulation 6 - paragraph 40(1)(a) of the Act: Christmas Island laws
Regulation 6 provides that paragraph 40(1)(a) of the Act should continue in force and be exempt from application of the Act with respect to certain laws of the Territory of Christmas Island specified in Part II of Schedule 2. These laws were previously listed in the (No. 1) Regulations (1986) Schedule, Part II. The citations of the relevant Ordinances have been amended to remove all doubt that the proper laws are subject to the exemptions.
• Adoption of Children Ordinance
This Ordinance is an Ordinance of the Colony of Singapore continued in force in the Territory by virtue of the Christmas Island Act. The Ordinance makes provision for adoption by single persons or by spouses, not by de facto
spouses, and prevents adoption by a single male of a female infant (except in special circumstances). It is necessary to preserve these provisions until the policy in relation to the persons who should be permitted to adopt children is reviewed.
• Divorce Ordinance
The Divorce Ordinance 1958 adopted the earlier Singapore Divorce Ordinance as a law of the Territory. The sections of the Divorce Ordinance which contain provisions in conflict with the Sex Discrimination Act are:
(i) Section 6: grounds for divorce;
(ii) Section 29: alimony for the wife pending the divorce proceedings;
(iii) Section 30: permanent alimony for the wife; and
(iv) Section 32: settlement of the wife’s property.
• Married Women and Children (Maintenance) Ordinance
The Married Women and Children (Maintenance) Ordinance of the Colony of Singapore makes provision for compulsory (on court order) maintenance of wives and children but no provision is made for maintenance of husbands. The reason for preserving these provisions is to enable the present laws to continue in operation until agreement can be reached with the Muslim community on the reform of family law.
• Muslims Ordinance
Sections 10; 18; 19; 22; 30; 31 and 39 of the above Ordinance are discriminatory. These provisions relate to the registration of and procedures for marriages; divorces
or revocations of divorces; claims for dowry; alimony and maintenance; the administration of a husband’s estate and the administration of a wife’s estate and household property.
The reason for their retention is to comply with the commitment of the Australian Government to respect the religious beliefs, traditions, and culture of the Cocos Malay people.
• Penal Code
The Penal Code of the Colony of Singapore is continued in force in the Territory by virtue of the Christmas Island Act. Particular provisions which may constitute sex discrimination are sections 375, 376A, 376B, 376C, 377A and 493 which relate to sexual offences. Amongst these provisions are differences in maximum terms of imprisonment for males and females for incest and the offence, for which only a man can be liable, of causing a woman by deceit to believe she is lawfully married to that man.
The reason for this exemption is to ensure that the criminal law in Christmas Island continues to operate effectively until a thorough review of the Penal Code can be completed.
• Registration of Births and Deaths Ordinance
Sub-section 10(1) deals with the registration and choice of surname of a child. It is proposed to revise this Ordinance replacing the discriminatory provision with a provision that is compatible with the Sex Discrimination Act. It was therefore necessary to preserve the present discriminatory provision until the new Ordinance is finalised.
Regulation 7 - paragraph 40(1)(a) of the Act: Cocos (Keeling) Islands laws.
Regulation 7 provides that paragraph 40(1)(a) of the Act will continue in force and be exempt from application of the Act with respect to certain laws of the Territory of Cocos (Keeling) Islands specified in Part III of Schedule 2. These laws were previously listed in (No.1) Regulations (1986), Schedule, Part II. The citations of the relevant Ordinances have been amended to remove all doubt that the relevant laws are subject to the exemptions.
• Adoption of Children Ordinance
• Divorce Ordinance
• Married Women and Children (Maintenance) Ordinance
• Muslims Ordinance
• Penal Code
These Ordinances of the Colony of Singapore are continued in force for the Territory. The reasons for exemption of these Ordinances are similar in substance to the reasons given above in relation to the Ordinances of Christmas Island.
• Registration of Births and Deaths Ordinance
This Ordinance of the Colony of Singapore is also continued in force in the Cocos (Keeling) Islands. The Ordinance contains two provisions which discriminate on the ground of sex. The surname of the child whose birth is registered is to be that of the child’s father, unless the mother advises that the child is illegitimate, and, where a woman is required to notify a birth or death, she may authorize only male relatives to notify on her behalf.
It is proposed to revise this Ordinance to replace the discriminatory provisions with provisions which are compatible with the Sex Discrimination Act. The Ordinance has been preserved by exemption pending completion of the review.
Regulation 8 - paragraph 40(1)(a) of the Act: Norfolk Island laws.
Regulation 8 provides that paragraph 40(1)(a) of the Act should continue in force and be exempt from application of the Act with respect to certain laws of the Territory of Norfolk Island specified in Part IV of Schedule 2. Those laws were previously listed in the (No.1) Regulations (1986), Schedule, Part II.
• Social Services Act 1980
Sub-section 16(1) of the Act discriminates between females and males in relation to eligibility for age pensions. This provision is preserved because it is Commonwealth policy that Norfolk Island social security law follow the provisions of the Commonwealth Social Security Act 1947 which have been preserved by section 40 of the Sex Discrimination Act.
• Adoption of Children Ordinance 1932
Except in the case of a married couple, this Ordinance does not permit adoption by more than one person. The adoption of female children by males is also restricted. The Ordinance is preserved to maintain consistency in the adoption laws of the external territories. This law will be reviewed at the same time as the adoption laws for Cocos (Keeling) Islands and Christmas Island are reviewed.
• Crimes Act 1900 of New South Wales as in force in Norfolk Island under section 3 of Criminal Law Ordinance 1960
The following provisions in the Crimes Act 1900 (NSW) (which applies in Norfolk Island by virtue of section 6 of the Criminal Law Ordinance 1960) have been identified as being possibly inconsistent with the Sex Discrimination Act:
Section 60 relating to assault by a husband on a wife;
Sections 63 - 78B inclusive relating to sexual offences;
Section 407 relating to the competency of parties and accused persons and their husbands and wives to give evidence;
Sections 434 and 435 relating to the sentencing of males to whipping or irons;
Section 467 relating to the provision of maintenance to the wives of prisoners;
Sections 483 and 484 relating to offences committed by males which can be punished summarily by whipping; and Section 573 relating to provision for a wife where her husband is convicted of aggravated assault.
These provisions are being retained, pending the revision of the Crimes Act 1900 (NSW) as it applies to Norfolk Island. This review is expected to take some time to complete. The Norfolk Island Government requested that the discriminatory provisions be exempted from the Sex Discrimination Act so as to ensure that the criminal law on Norfolk Island would continue to operate effectively while the review is underway.
Regulation 9 - paragraph 40(1)(b) of the Act: Commonwealth and Territories Law.
Regulation 9 extends the exemptions for regulations rules, by-laws, determinations or directions under laws that are themselves exempted. Sub-regulation 9(1) provides that paragraph 40(1)(b) of the Act will continue in force and be
exempt from application of the Act with respect to all regulations, rules, by-laws and determinations or directions made under laws specified in Part I of Schedule 1 or specified in Schedule 2. These laws were previously specified in the (No.1) Regulations (1986).
Sub-regulation 9(2) provides that paragraph 40(1)(b) of the Act will continue in force and be exempt from application of the Act with respect to all regulations, rules, by-laws and determinations or directions made under a law specified in Part II of Schedule 1 or referred to in paragraph 5(2)(a). These laws were previously specified in the (No.2) Regulations (1987).
Regulation 10 - paragraphs 40(1)(a) and (b) of the Act: New South Wales legislation.
Sub-regulation 10(1) provides that paragraph 40(1)(a) of the Act will continue in force and be exempt from application of the Act with respect to provisions of Acts of New South Wales specified in Part 1 of Schedule 3. These provisions were proviously listed in (No.2) Regulation (1987), Schedule 2. The reasons for the exemptions are as follows:
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 sections of the Coal Mines Regulation Act 1982, the Mines Inspection Act 1901 and the Mines Rescue Act 1925 and the regulations made thereunder provide for restrictions on employment of women in mines.
Section 36 of the Factories, Shops and Industries Act 1962 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 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.
The relevant sections of the Co-operation Act 1923, Permanent Building Societies Act 1967 and Credit Union Act 1969, 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.
Part V of the Landlord and Tenant (Amendment) Act 1948, 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.
Sub-regulation 10(2) provides that paragraph 40(1)(b) of the Act should continue in force and be exempt from application of the provisions of regulations specified in Part II of Schedule 3. These provisions were previously listed in the (No 2) Regulations (1987), sub-regulation 4(2). Explanation for the exemptions are similar to those in relation to sub-regulation 10(1).
Regulation 11 - paragraph 40(1)(a) of the Act: Victorian legislation.
Regulation 11 provides that paragraph 40(1)(a) of the Act should remain in force and be exempt from application of the Act with respect to the Local Government Act 1958 of Victoria. This Act was previously exempted by the (No.2) Regulations (1987), sub-regulation 5(1).
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 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.
Regulation 12 - paragraph 40(1)(a) and (b): Queensland legislation.
Regulation 12 provides that paragraphs 40(1)(a) and (b) of the Act should remain in force and be exempt from the operation of the Act with respect to both the Factories and Shops Act 1960 of Queensland and all regulations, rules, by-laws, determinations and directions made thereunder. These exemptions were previously provided for by the (No 2) Regulations (1987), regulation 6.
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.
Regulation 13 - paragraph 40(1)(a) and (b) of the Act: Western Australian legislation
Sub-regulation 13(1) provides that paragraph 40(1)(a) of the Act should remain in force and be exempt from the operation of the Act with respect the Act and the provision of an Act specified in Part I of Schedule 4. These provisions were previously contained in the (No 2) Regulations (1987), sub-regulation 7(1).
• Child Welfare Act 1947
S.106 is discriminatory on the grounds of sex. The provision deals with the hours of street trading by children under school leaving the age. The State Government considered a proposal to remove the discrimination, and directed that further work on the matter be carried out.
• Pearling Act 1912, subsection 82(2)
The provision prohibits employment of women as pearl fishers. Although it is intended to amend this provision it still has not been possible to introduce the necessary legislation.
Sub-regulation 13(2) provides that paragraph 40(1)(b) of the Act should remain in force and be exempt from the application of the Act with respect to the regulations of Western Australia specified in Part II of Schedule 4. These regulations were previously exempted by the (No.2) Regulations (1987), subregulation 7(2).
• Regulations under the Factories and Shops Act 1963
Although Western Australia has passed new non-discriminatory legislation to deal with manual handling and lead processing, the Act has not yet been proclaimed.
Proclamation is anticipated in August 1988. Upon proclamation the Regulations will be repealed.
Regulation 14 - paragraph 40(1)(a) and (b) of the Act: Tasmanian legislation.
Regulation 14 provides that paragraphs 40(1)(a) and (b) of the Act should remain in force and be exempt from the operation of the Act with respect to the Industrial Safety, Health and Welfare Act 1977 and the Mines Inspection Act 1968 of Tasmania, and all regulations, rules, by-laws, determinations or directions made under either of those two Acts. These provisions were previously exempted under the (No.2) Regulations (1987), regulation 8.
Regulation 15 - repeal of Sex Discrimination (Operation of Legislation) (No.1) Regulations.
Regulation 15 repeals Statutory Rules 1986 No.191, the Sex Discrimination (Operation of Legislation) (No. 1) Regulations, and Statutory Rules 1987, No. 8, Sex Discrimination (Operation of Legislation) (No. 1) Regulations (Amendment)
Regulation 16 - repeal of Sex Discrimination (Operation of Legislation) (No.2) Regulations.
Regulation 16 repeals Statutory Rules 1987, No. 158, Sex Discrimination (Operation of Legislation) (No. 2) Regulations and Statutory Rules 1988, No. 3, Sex Discrimination (Operation of Legislation) (No. 2) Regulations (Amendment).