EXPLANATORY STATEMENT
Sex Discrimination (Operation of Legislation) Regulations
Statutory Rules 1990 No. 244
Issued by the Authority of the Attorney-General
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.
Subsection 40(2) provides that, except to the extent that regulations made for the purposes of subsection 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. Subsection 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) Regulations (S.R. No. 200 of 1989) (‘the 1989 Regulations’) extended the exemptions in respect of certain Commonwealth, State and Territory legislation. The exemptions under the 1989 Regulations expired on 31 July 1990.
The purpose of these Regulations is to repeal those exemptions which are no longer necessary and to establish a new expiry date. The extensions of the exemptions for the State legislation have been requested by the relevant State Governments.
Regulation 1 - Citation
Citation of the Regulations
Regulation 2 - Commencement
The commencement date is to be 1 August 1989.
Regulation 3 - Interpretation
Subregulation 3(1) defines “the Act” as the Sex Discrimination
Act 1984, and establishes 31 July 1991 as “the relevant day”, that is, the date upon which the exemptions provided for by these regulations will expire.
Subregulations 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 4QU)(9) of the Act
Regulation 4 provides that paragraph 40(1)(a) of the Act will continue in force in relation to the legislation specified in Schedule 1. These laws were previously contained in the 1989 Regulations.
Defence Act 1903. Part IV (other than subsection 60(3))
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.
Defence Service Homes Act 1918
The Defence Service Homes Act 1918 was amended in 1988 and 1989, and several provisions that were discriminatory on the grounds of sex and marital status were removed, but some still remain. The Government is considering extending access to widows, benefits under the Defence Service Homes Act - eligibility, instalment relief and widows’ advances - to the male counterparts of widows and widowed mothers, and so removing the discrimination. The existing temporary exemption from the operation of the Sex Discrimination Act will expire on 31 July 1990, before the Government will have a chance to consider the amendments proposed so that the Defence Service Homes Act can fully comply. Accordingly, an extension of the exemption is necessary.
Gift Duty Assessment Act 1941
Amendment to this legislation, including regulations made under it, 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. The Government will consider an amendment to the Sex Discrimination Act to provide a permanent exemption for this legislation.
Income Tax Assessment Act 1936
A number of amendments to the Income Tax Assessment Act 1936 are proposed to be introduced later this’ year. However, 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’ (subsection 23AA(1))
(ii) the use of ‘prescribed person’ (subsection 23AD(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)).
It is proposed after amendment of the Act that the discriminatory provisions remaining will be considered by the Government for permanent exemption.
Income Tax (International Agreements) Act 1953. The term “resident” is defined in the same way as in the Income Tax Assessment Act. As with that Act, the Government will consider permanently exempting the Act, after removal of some discriminatory provisions, later this year.
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). There
is a need for wider community consultation before the question of a uniform marriageable age can be settled.
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 by reference 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. It is proposed that both sections will be amended to conform with the Sex Discrimination Act 1984 in the near future; until this is done, however, a continued temporary exemption is necessary.
National Health Act 1953, sections 4 (definition of “pensioner”), 84 (definition of “concessional beneficiary”) and the Schedule, paragraphs (be) and (j)
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 subsection 40(2) of the Sex Discrimination Act, it is necessary that these provisions of the National Health Act be similarly exempted.
The effect of paragraphs (be) and (j) of 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. As these considerations will not change, the Government will consider an amendment to the Sex Discrimination Act to provide a permanent exemption. In the meantime, a temporary exemption is necessary.
Sales Tax (Exemptions and Classifications) Act 1935
A number of provisions of this Act which are not to be amended are possibly discriminatory:
subsection 114A (7) (definition of ‘relation’, which may not include a de facto spouse)
subsections 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.
As with other taxation legislation, the Government will consider amending the Sex Discrimination Act to provide a permanent exemption for the remaining discriminatory provisions.
Student Assistance Act 1973
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. The Government will consider providing a permanent exemption for discriminatory provisions under the Act, from the Sex Discrimination Act.
Taxation (Unpaid Company Taxi 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 and may be discriminatory on the grounds of marital status. 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. As with other taxation legislation, it is proposed that the Government will consider a permanent exemption of this Act after removal of some discriminatory provisions later this year.
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 override 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. The Government will consider amending the Sex Discrimination Act to provide a permanent exemption for this Act.
Factories, Shops and Industries Act 1962 (NSW), s.36
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. New South Wales is considering amendment of this legislation to conform to a code of practice on manual handling and a national standard on lead processing developed by Worksafe Australia. A temporary exemption is justified pending such amendment.
Landlord and Tenant (Amendment) Act 1948 (NSW), Part V
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. New South Wales is conducting a review of the legislation and expects amendments to be made later this year.
Local Government Act 1958 (VIC)
The Victorian Government has introduced a new Local
Government Act which contains none of the discriminatory provisions found in the present Act. However, the new legislation has not yet been proclaimed in its entirety.
Factories and Shops Act 1960 (OLD)
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. A temporary exemption is required pending the consideration of the code of practice on manual handling and national standard for lead processing developed by Worksafe Australia.
Child Welfare Act 1947 (WA)
Section 106 is discriminatory on the grounds of sex. The provision deals with the hours of street trading by children under school leaving age. The State Government is proposing amendments to the legislation later this year.
Pearlino Act 1912 (WA), subsection 82(2)
The provision prohibits employment of women as pearl fishers. Western Australia intends to amend this provision and expects to introduce the necessary legislation later this year.
Industrial Safety. Health and Welfare Act 1977 (TAS)
The Act and subordinate legislation contain provisions restricting the employment of women. A temporary exemption is required pending the consideration of the code of practice on manual handling developed by Worksafe Australia.
Mines Inspection Act 1968 (TAS)
A temporary exemption is required for the Act and
subordinate legislation made under it pending the consideration of the code of practice on lead processing developed by Worksafe Australia.
Adoption of Children Act 1965 (ACT)
A number of provisions in the Adoption of Children Act 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 Act and Regulations 17 and 18 and Schedule 1 to the Regulations and provisions dependent on or related to these.
Unless exceptional circumstances exist, the Act 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.
Some of the discriminatory provisions of the Act and Regulations are expected to be removed later this year. Others are at present being reviewed with a view to gathering evidence as to whether they should be retained or amended.
Inebriates Act 1900 (NSW), section 2.
This provision, as in force in the Australian Capital Territory, 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. It is expected that the legislation will be amended later this year to remove the discrimination.
Inebriates (Amendments Act 1909 (NSW), section 5
This provision, as in force in the Australian Capital Territory, regulates sentencing options of persons convicted of assaulting women. It is expected that the legislation will be amended later this year to remove the discrimination.
Married Women and Children (Maintenance) Ordinance
The Married Women and Children (Maintenance) Ordinance of the Colony of Singapore is in force in both Christmas Island and the Cocos (Keeling) Islands. It makes provision for compulsory (on court order) maintenance of wives and children but no provision is made for maintenance of husbands. The Ordinance will be amended shortly, but in the interim some provision for maintenance of wives and children is necessary.
Muslims Ordinance
Sections 10, 18, 19, 22, 30, 31 and 39 of the above Ordinance, which is in force in both Christmas Island and the Cocos (Keeling) Islands, 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. It is expected that the Ordinance will be amended shortly after consultation with the local Muslim communities.
Penal Code, sections 375, 376A-C and 493
The Penal Code of the Colony of Singapore is in force in both Christmas Island and the Cocos (Keeling) Islands. Particular provisions which may constitute sex discrimination are sections 375, 376A, 376B, 376C 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 these Territories continues to operate effectively until a thorough review of the Penal Code can be completed. Amendment of the legislation is expected shortly.
Social Services Act 1980 (Norfolk Island)
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 1984. It may be that the Act will need to be permanently exempted from the Sex Discrimination Act.
Regulation 5 - paragraph 40(1)(b) of the Act
Regulation 5 provides that paragraph 40(1)(b) of the Act will continue in force in relation to the subordinate legislation specified in Schedule 2. This legislation was previously contained in the 1989 Regulations.
The legislation specified in Schedule 2 is the following:
Regulations under the Gift Duty Assessment Act 1941
Regulations under the Income Tax Assessment Act 1936
Regulations under the Sales Tax (Exemptions and Classifications) Act 1935
Regulations under the Student Assistance Act 1973.
Regulation 2 of the Lead Regulations made under the Factories, Shoos and Industries Act 1962 (NSW).
Regulations, rules, by-laws, determinations and directions made under the Factories and Shoos Act 1960 (QLD)
Regulations, rules, by-laws, determinations and directions made under the Industrial Safety, Health and Welfare Act 1977 (Tas)
Regulations, rules, by-laws, determinations and directions made under the Mines Inspection Act 1968 (Tas)
Regulations under the Adoption of Children Act 1965 (ACT)
The above subordinate legislation has been discussed in the context of the principal legislation, which is also exempt in each case.
Regulation 6 - repeal of Statutory Rules 1989 No. 200
Regulation 6 repeals the 1989 regulations, which became inoperative on 31 July 1990.