Bills Digest 61 1996-97 Sex Discrimination Amendment Bill 1996


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WARNING:
This Digest is prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest was available from 2 December 1996.

CONTENTS

Passage History

Sex Discrimination Amendment Bill 1996

Date Introduced: 6 November 1996
House: House of Representatives
Portfolio: Attorney-General
Commencement: Royal Assent

Purpose

The purpose of this Bill is to narrow or remove exemptions provided in the Sex Discrimination Act 1984 (the Act) for certain specified legislation and regulations. The Bill is in accordance with the Attorney-General's 1996 Review of permanent exemptions in s40(2) and 40(3) of the Act.(1)

Background

The Act, which commenced on 1 August 1984, has four key objectives.

  • To give effect to certain provisions of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women.(2)
  • To make unlawful discrimination on the grounds of sex, marital status, pregnancy and potential pregnancy in the areas of employment, education, accommodation, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and program.
  • To make unlawful sexual harassment and discrimination on the ground of family responsibilities in certain circumstances.
  • To promote recognition and acceptance within the community of the principle of the equality of women and men.

Exemptions for acts done under Statutory Authority

The Act also contains a range of provisions which exempt certain activities from its operation. One of the principal provisions is section 40, which exempts certain acts done under statutory authority. Section 40 was included in the Act from the first stages of drafting,(3) and among other things, initially provided a two year exemption for acts done by a person in direct compliance with a Commonwealth, State or Territory law or regulation as in force at the commencement of the Act (1 August 1984). Section 40 also provided permanent exemptions for certain specified legislation.(4)

The aim of the two year exemption was to provide Commonwealth, State and Territory governments a period to review discriminatory legislation and where possible to align all legislation and regulations with the Act.(5) At the expiration of the two year period, it was intended that all Commonwealth legislation as in force at the commencement of the Act and all State and Territory legislation would be subject to the Act, unless the two year exemption was extended by regulation(6) or the legislation was subject to a permanent exemption.

In 1986, prior to the expiration of the two year exemption period, the Government utilised the regulation making power to begin implementation of a regime under which Commonwealth, State and Territory legislation was exempted by regulation from the operation of the Act.(7) Further regulations were made in 1987, 1988 and 1989 and although there was a steady reduction in the number of exemptions provided for by regulation, many laws remained exempt. (8)

In 1991, the Senate Standing Committee on Regulations and Ordinances expressed strong concern at both the existence of this broad regulation making power and the manner in which it was exercised.(9) In particular, the Committee was concerned that the continued process of exemption for Commonwealth, State and Territory legislation by regulation contravened the principles that delegated legislation must not breach the spirit of its parent Act and must not contain matters more appropriate for Parliamentary enactment.(10) Apropos of this concern, the Committee strongly advised that the continued regime of the Executive exempting discriminatory statutes by regulation cease.(11)

Consequently, the Sex Discrimination Amendment Bill 1991 was introduced, which proposed repeal of the power to extend exemptions to the Act by regulation.(12) The Bill included subsections 40(2) and (3) which provided an indefinite statutory exemption for specified legislation (discussion of this legislation is set out below).(13) During the Senate Legal and Constitutional Affairs' Committee's consideration of the Bill, the Australian Democrats moved an amendment to the Bill to impose a statutory obligation on the Attorney-General to review the operation of subsections 40(2) and (3) before 1 June 1996.(14) The Review was to include a recommendation as to whether the relevant permanent exemptions should be repealed and copies of the Review were to be tabled in both Houses of Parliament. The amendment received bipartisan support(15) and was inserted as section 40A of the Sex Discrimination Amendment Act 1991. (16)

Attorney-General's Section 40A Review of Subsections 40(2) and 40(3) of the Act

As required by section 40A the Attorney-General, the Hon. Daryl Williams, finalised a review of statutory exemptions provided by subsections 40(2) and (3) of the Act on 31 May 1996. The Review was tabled in Parliament on 26 June 1996. (17)

The Review operated in accordance with the principle that where possible all federal legislation should be consistent with the objectives of the Act and there where exemptions to the Act are necessary they should be strictly limited.(18)

What follows is a summary of the exempt legislation reviewed and the Attorney-General's recommendations. As the Review notes, the recommendations reflect consultations with the Norfolk Island Government, relevant Commonwealth Ministers and the Sex Discrimination Commissioner.

(i) Exemptions for Specific Taxation Law

Paragraphs 40(2)(a), (c), (d), (f) and (i) currently exempt anything done by a person in direct compliance with the following taxation legislation as in force on 1 August 1984:

  • the Gift Duty Assessment Act 1941
  • the Income Tax Assessment Act 1936
  • the Income Tax (International Agreements) Act 1953 (now titled the International Tax Agreements Act 1953)
  • the Sale Tax (Exemptions and Classifications) Act 1935
  • the Taxation (Unpaid Company Tax) Assessment Act 1982.

Subsection 40(3) provides an exemption in relation to marital status discrimination for anything done by a person in direct compliance with any regulations, rules, by-laws, determination or directions made under:

  • the Gift Duty Assessment Act 1941
  • the Income Tax Assessment Act 1936
  • the Sale Tax (Exemptions and Classifications) Act 1935.

These Acts were identified as appropriate for an exemption in the Sex Discrimination Amendment Act 1991 following a review of the discriminatory aspects of taxation legislation by the Australian Taxation Office in the late 1980s.(19) This review process was primarily sparked by the objectives of the Federal Government's A Say, A Choice, A Fair Go: The Government's National Agenda for Women,(20) a blueprint for Government policy and law reform to ensure progress towards women's substantive equality in all spheres.(21) In relation to sex discrimination, the National Agenda's action plan included reduction of the number of exemptions to the Act.(22)

Many of the discriminatory provisions identified in the taxation review process were amended in 1990 in accordance with sex discrimination principles.(23) However, it was considered necessary that certain discriminatory provisions remain.(24) The Income Tax Assessment Act 1936, the Income Tax (International Agreements Act) 1953 and the Taxation (Unpaid Company Tax Assessment) Act 1982 contain provisions which employ terms such as 'relative', 'associate' and 'dependent' which discriminate on the ground of marital status. The aim of these provisions is to ensure the efficacy of anti tax-avoidance provisions and to prevent abuse of tax concessions.(25)

The Sales Tax (Exemptions and Classifications) Act 1935 also contains provisions which employ discriminatory categories of 'relation' and 'dependent'. These provisions are considered necessary to effect international agreements.(26)

The Gift Duty Assessment Act 1941 also incorporates discriminatory concepts. However, as it only applies to gifts made before 1979 it is considered appropriate to finalise outstanding assessment under this regime.(27)

The Attorney-General's 1996 Review considered the discriminatory aspects of each exempted Act and identified that the only form of discrimination occurring under the specified taxation legislation was discrimination on the ground of marital status.

The Review concluded that continued exemptions for the specified taxation legislation are necessary for the same reasons advanced during debate of the Sex Discrimination Amendment Bill 1991.(28) However, the Attorney-General recommended that the current general exemption from the Act provided by subsection 40(2) be narrowed to only exempt discrimination on the ground of marital status, in order to properly reflect the ambit of exempt discrimination in this area.

The exemption provided by subsection 40(3) is currently limited to marital status discrimination and the Attorney-General's Review recommended this exemption continue. However, the Review recommended that the reference to the Gift Duty Assessment Act 1941 be repealed as the exemption is no longer required.

(ii) National Health Act 1953

Paragraph 40(2)(b) provides an exemption for anything done by a person in direct compliance with the operation of:

  • (i) the definition of 'pensioner' in subsection 4(1) or
  • (ii) the definition of 'concessional beneficiary' in subsection 84(1)

of the National Health Act 1953 as in force on 1 August 1984.

The Attorney-General's Review notes that the reason for enacting this exemption in the Sex Discrimination Amendment Act 1991 was that, for the purposes of the pharmaceutical benefits scheme, the sex discriminatory definitions of 'pensioner' and 'concessional beneficiary' link to the sex discriminatory age pension provisions under the social security regime. However, as differential access to age pensions is being phased out, the Review recommends that the existing exemption for the National Health Act 1953 be 'sunsetted' to expire concurrently with the expiration of sex differentiated access to age pensions on 1 January 2014.

(iii) Exemptions for Veteran's Affairs Legislation

Paragraphs 40(2)(e) and (g) provide an exemption for anything done by a person in direct compliance with the following legislation as in force on 1 August 1984:

  • the Papua New Guinea (Members of the Forces) Benefits Act 1957
  • the Seaman's War Pensions and Allowances Act 1940.

The Attorney-General's Review recommended repealing the exemption for the first Act as it was no longer required. The second Act was repealed in 1994.(29)

(iv) Social Security Act 1947

Paragraph 40(2)(h) provides an exemption for anything done by a person in direct compliance with the Social Security Act 1947 as in force on 1 August 1984.

The operation of this exemption is ambiguous due to an apparent drafting error in the Sex Discrimination Amendment Act 1991. When originally enacted, section 40 of the Act provided a statutory exemption for the Social Security Act 1947.(30) The Social Security Act 1947 was repealed and replaced by the Social Security Act 1991, which came into operation on 1 July 1991. Transitional legislation (which came into effect simultaneously) accordingly amended the Act so that it referred to the Social Security Act 1991.(31) At the same time, the Sex Discrimination Amendment Bill 1991 was progressed through Parliament and amended section 40 so as to enact the current subsection 40(2), including the reference in paragraph 40(2)(h) to the Social Security Act 1947. The Sex Discrimination Amendment Act 1991 became operative on 1 August 1991 one month after commencement of the social security legislation.

The legal impact of this sequence of events is open to doubt. The Attorney-General's Review has not taken a position on the legal status of the exemption.

The Attorney-General was assisted in the review of the social security regime by a Steering Committee convened by the Sex Discrimination Commissioner. The report of the Steering Committee is attached to the Review and provides an analysis of the 'in principle discrimination' in the social security regime. For example, the Report identifies assumptions of dependency as an important aspect of discrimination in social security. The report further notes the difficulties of considering such discrimination in isolation from other areas which incorporate similar discriminatory dependency assumptions (for example taxation, superannuation, student assistance). The Attorney-General has referred the Steering Committee's Report to the Minister for Social Security.

The Government will report to Parliament before 26 June 1997 on the areas of 'in principle discrimination' identified by the Steering Committee and on the appropriate action to be taken in relation to the exemption in paragraph 40(2)(h) for the Social Security Act 1947.(32)

(v) Exemption for Norfolk Island Legislation

Paragraph 40(2)(j) provides an exemption for anything done by a person in direct compliance with the Social Services Act 1980 of Norfolk Island as in force on 1 August 1984.

The Attorney-General's Review notes that the general exemption for the Norfolk Island Social Services Act 1980 was included in the Sex Discrimination Amendment Act 1991 to cover sex differentiated access to age pensions and marital status discrimination in relation to determining the rate of benefit for certain forms of social security. The Government of Norfolk Island has requested that the general exemption currently provided by the Act be narrowed to specifically cover these areas.

Main Provisions

Schedule 1 Amendments

Item 1 repeals the exemptions current provided in subsection 40(2) of the Act for:

  • the Gift Duty Assessment Act 1941
  • the Income Tax Assessment Act 1936
  • the Income Tax (International Agreements) Act 1953 (now titled the International Tax Agreements Act 1953)
  • the Papua New Guinea (Members of the Forces Benefits) Act 1957
  • the Sale Tax (Exemptions and Classifications) Act 1935
  • the Taxation (Unpaid Company Tax) Assessment Act 1982
  • Social Services Act 1980 of Norfolk Island.

Item 2 inserts three new subsections into section 40.

Proposed subsection 40(2A) provides an exemption for discrimination on the ground of marital status for anything done by a person in direct compliance with the following taxation legislation as in force at 1 August 1984:

  • the Gift Duty Assessment Act 1941
  • the Income Tax Assessment Act 1936
  • the International Tax Agreements Act 1953
  • the Sale Tax (Exemptions and Classifications) Act 1935
  • the Taxation (Unpaid Company Tax) Assessment Act 1982.

Proposed subsection 40(2B) provides a limited general exemption for anything done by a person in direct compliance with the Social Services Act 1980 of Norfolk Island as in force on 1 August 1984 in two circumstances:

  • in relation to sex discrimination in the determination of age pensions; and
  • in relation to marital status discrimination in the determination of the rate of social security benefit payable to single and married persons.

Proposed subsection 40(2C) provides a sunset clause for the current general exemption in paragraph 40(2)(b) for the definition of 'pensioner' and 'concessional beneficiary' in the National Health Act 1953. The exemption will expire on 1 January 2014, pursuant to the phasing out of sex differentiated age pensions.

Item 3 omits the current exemption for marital status discrimination where a person acts in direct compliance with any regulations, rules, by-laws, determinations or directions under the Gift Duty Assessment Act 1941.

Remarks

In a detailed study of Australian anti-discrimination law, Professor Margaret Thornton has argued that although such law represents a halting step towards the formal recognition of inequality, it nevertheless 'is riddled with weaknesses in respect of both substance and procedure'.(33)Professor Thornton considers that a key weakness in relation to Federal sex discrimination law is the numerous exemptions and exceptions to the Act. In relation to 40(2) and (3) specifically, Professor Thornton notes that

'[t]he exception accorded acts done under statutory authority has been potentially one of the most devastating ... the usual principle of statutory construction in which the most recent enactment overrules the former, has been waived in some legislation. The subordinate status of anti-discrimination legislation reveals quite unequivocally that certain legislatures did not intend that their anti-discrimination legislation should be taken as seriously as other legislation.'(34) </ ul>

The Bill's aim of removing or further limiting exemptions for unjustifiable sex discrimination in specified legislation reflects the spirit of the Act. Historically, this aim has generally received Parliamentary support. For example, when the Australian Democrats proposed the section 40A statutory review of the exemptions provided in subsections 40(2) and (3), bipartisan support was given for the objective of ensuring that exemptions to the Act be limited. (35) In light of relevant inquiries which have touched on the operation of the Act, it appears that many individuals and community groups also consider removing exemptions to the Act as highly desirable.(36)

The Bill will primarily have a formal effect. Except for the sunsetting of the exemption provided for the National Health Act 1953, the amendments are consistent with current practice.

No further statutory review of the exemptions provided for specified legislation in subsections 40(2) and (3) is provided for in the Bill.

Endnotes

  1. Williams AM QC MP, the Hon. Daryl, Review by the Attorney-General of the Operation of Subsections 40(2) and 40(3) of the Federal Sex Discrimination Act 1984, 1996. The Review was tabled in Federal Parliament on 26 June 1996.
  2. The Convention was signed by Australia in 1980 and ratified in 1983. It entered into force in Australia on 27 August 1983.
  3. Sex Discrimination Commissioner, Report on Review of Permanent Exemptions under the Sex Discrimination Act 1984, 1992: 104. For the history of section 40, see Williams, op cit: 3-6.
  4. Subsection 40(2) provided a permanent exemption for anything done by a person in direct compliance with the following legislation as in force at 1 August 1984:

    - the Social Security Act 1947

    - the Compensation (Commonwealth Government Employees) Act 1971

    - the Repatriation Act 1920

    - the Seaman's War Pensions and Allowances Act 1940

    - the Papua New Guinea(Members of the Forces Benefits) Act 1957.

  5. Brown, the Hon. Robert, Second Reading Speech - the Sex Discrimination Amendment Bill 1991, House of Representatives, 6 March 1991: 1414.
  6. Subsection 40(6).
  7. Sex Discrimination (Operation of Legislation) (No. 1) Regulations, Statutory Rules 1986, No. 191.

    Sex Discrimination (Operation of Legislation) (No. 2) Regulations, Statutory Rules 1986, No. 192.

    Sex Discrimination (Operation of Legislation) (No. 3) Regulations, Statutory Rules 1986, No. 196.

  8. Sex Discrimination (Operation of Legislation) (No. 1) Regulations, (Amendment), Statutory Rules 1987, No. 8.

    Sex Discrimination (Operation of Legislation) (No. 2) Regulations, (Amendment), Statutory Rules 1987, No. 192.

    Sex Discrimination (Operation of Legislation) Regulations, Statutory Rules 1988, No. 183.

    Sex Discrimination (Operation of Legislation) Regulations, Statutory Rules 1989, No. 200.

    Sex Discrimination (Operation of Legislation) Regulations, Statutory Rules 1990, No. 244.

  9. Senate Standing Committee on Regulations and Ordinances, Report on Scrutiny by the Committee of Regulations Made Under the Sex Discrimination Act 1984, 1991.
  10. ibid: 1.

    (111) ibid: 31.

  11. The Sex Discrimination Amendment Bill 1991 was introduced in the House of Representatives on 6 March 1991 and in the Senate on 18 April 1991.
  12. Subsection 40(2) Nothing in Division 1 or 2 affects anything done by a person in direct compliance with any of the following as in force on 1 August 1984:

    - the Gift Duty Assessment Act 1941

    - the operation of

    (i) the definition of 'pensioner' in subsection 4(1) or

    (ii) the definition of 'concessional beneficiary' in subsection 84(1)

    of the National Health Act 1953

    - the Income Tax Assessment Act 1936

    - the Income Tax (International Agreements) Act 1953 (now titled the International Tax Agreements Act 1953)

    - the Papua New Guinea (Members of the Forces Benefits) Act 1957

    - the Sale Tax (Exemptions and Classifications) Act 1935

    - the Seaman's War Pensions and Allowances Act 1940

    - the Social Security Act 1947

    - the Taxation (Unpaid Company Tax) Assessment Act 1982

    - Social Services Act 1980 of Norfolk Island.

    Section 40(3) Nothing in Division 1 or 2, as applying by reference to section 6 [marital status discrimination] affects anything done by a person in direct compliance with any regulations, rules, by-laws, determinations or directions made under the Gift Duty Assessment Act 1941, the Income Tax Assessment Act 1936 or the Sales Tax (Exemptions and Classifications) Act 1935.

  13. Senate Standing Committee on Legal and Constitutional Affairs, 'The Sex Discrimination Bill 1991', Reports by Senate Standing Committees on Consideration of Bills: February - June 1991, 1991.
  14. Senate Standing Committee on Legal and Constitutional Affairs, 17 May 1991: 561.
  15. Relevant provisions commenced 1 August 1991.
  16. Williams, op cit.
  17. Explanatory Memorandum, Sex Discrimination Amendment Bill 1996: 1.
  18. Explanatory Memorandum, Taxation Laws Amendment Bill (No.5) 1990: 11; Williams, op cit: 7.
  19. Office of the Status of Women, A Say, A Choice, A Fair Go: The Government's National Agenda for Women, 1988.
  20. Explanatory Memorandum, Taxation Laws Amendment Bill (No.5) 1990: 11.
  21. Office of the Status of Women, op cit: 30.
  22. Taxation Laws Amendment Act (No.5) 1990.
  23. Brown, Second Reading Speech - Sex Discrimination Amendment Bill 1991, op cit: 1414.
  24. ibid: 1415; Williams, op cit: 7-8.
  25. ibid.
  26. ibid.
  27. ibid.
  28. Section 47 of the Veteran's Affairs (1994-5) Budget Measures) Legislation Amendment Act 1994 repealed the Seaman's War Pensions and Allowances Act 1947. Item 7 of Schedule 6 of the Veteran's Affairs (1994-5) Budget Measures) Legislation Amendment Act (No.2) 1994 omitted paragraph 40(2)(g) of the Act.
  29. Paragraph 40(2)(a) Sex Discrimination Act 1984.

    (311) Schedule 3, Social Security (Rewrite) Transition Act 1991.

  30. Williams, op cit: 14.
  31. Thornton, Margaret, The Liberal Promise: Anti-Discrimination Legislation in Australia, 1990: 260-261.
  32. ibid: 132-133.
  33. Senate Standing Committee on Legal and Constitutional Affairs, 17 May 1991: 561.
  34. House of Representatives Standing Committee on Legal and Constitutional Affairs, Half Way to Equal: Report of the Inquiry into Equal Opportunity and Equal Status for Women In Australia, 1992: 238-9; Sex Discrimination Commissioner, op cit: 112-114.

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ISSN 1323-9031
© Commonwealth of Australia 1996

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