Disability Discrimination Amendment Regulations 1999 (No. 1) 1999 No. 40
EXPLANATORY STATEMENT
STATUTORY RULES 1999 NO. 40
Issued by the Authority of the Attorney-General
Disability Discrimination Act 1992
Disability Discrimination Amendment Regulations 1999 (No. 1)
Section 132(1) of the Disability Discrimination Act 1992 ('the Act') provides that the GovernorGeneral may make regulations prescribing matters required or permitted to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsection 132(2) provides that before making any regulations for the purposes of section 31 or 47, the Governor-General is to take into consideration any comments made to the Minister by a Minister of a State and Territory who is responsible for matters relating to disability discrimination.
Part 2 of the Act prohibits discrimination on the basis of a person's disability. Exemptions to this prohibition are provided in Division 5 of Part 2. Section 47(2) states that this Part does not render unlawful anything done by a person in direct compliance with a prescribed law.
The purpose of the Disability Discrimination Amendment Regulations 1999 (No. ) is to make the following 'prescribed law(s)' for the purposes of s.47(2) of the Act:
* Mental Health Act 1990 and Mental Health Regulations 1995 (NSW);
* clauses 10(1)(c) and 11 Motor Traffic Regulations 1935 (NSW);
* sections 20 and 20A Firearms Act 1977 (SA);
* sections 88 and 148 Motor Vehicles Act 1959 (SA);
* sections 75(3) and 75A Education Act 1972 (SA);
* regulation 11 Industrial and Employee Relations (General) Regulations 1994
(SA); and
* section 30A and Schedule 3 Workers Rehabilitation and Compensation Act 1986
(SA).
Section 47(3) of Division 5 provides a general exemption from the operation of the Act for things done in direct compliance with other laws for a period of 3 years commencing on 1 March 1993. This three year period was provided for in the Act to allow for the review and amendment of legislation that was inconsistent with the Act. Subsection 47(2) of the Act provides a further exemption from the operation of the Act for things done in compliance with a prescribed law.
In 1993 the then Attorney-General, the Hon Michael Lavarch MP, wrote to all State and Territory Attorneys-General regarding the need to review all legislation to remove inconsistencies between State and Territory laws and the Act, or where necessary to seek to have relevant laws prescribed.
In the context of this review the New South Wales Attorney-General, the Hon J.W. Shaw QC MLC, requested that the following Act and provisions be made prescribed laws for the purposes of s.47(2):
Mental Health Act 1990 and Mental Health Regulations 1995 (NSW); and
clauses 10(1)(c) and 11 Motor Traffic Regulations 1935 (NSW).
The South Australian Attorney-General, the Hon K. Trevor Griffin MLC, requested that the following provisions be made prescribed laws for the purposes of s.47(2):
* sections 20 and 20A Firearms Act 1977 (SA);
* sections 88 and 148 Motor Vehicles Act 1959 (SA);
* sections 75(3) and 75A Education Act 1972 (SA);
* regulation 11 Industrial and Employee Relations (General) Regulations 1994 (SA); and
* section 30A and Schedule 3 Workers Rehabilitation and Compensation Act 1986
(SA).
These requests are relevant to the requirement established in subsection 132(2). The AttorneyGeneral has agreed to these requests.
The regulations commence on gazettal.
Overview
The Disability Discrimination Amendment Regulations 1999 (No. 1) were enacted to address inconsistencies between various state and territory laws and the Disability Discrimination Act 1992. The primary objective of these regulations is to ensure that certain state and territory laws are recognised as 'prescribed laws' under section 47(2) of the Act, thereby exempting compliance with these laws from the prohibitions on discrimination based on disability. Enacted by the Australian Government under the authority of the Attorney-General, the regulations follow requests from state and territory Attorneys-General to address discrepancies and facilitate compliance with the overarching federal disability discrimination protections. This legislative step aims to harmonise state and territory laws with the federal Act, thereby streamlining the enforcement of anti-discrimination measures and ensuring a consistent approach across jurisdictions.
Scope and Application
The Disability Discrimination Amendment Regulations 1999 (No. 1) apply to various entities and individuals who are subject to the Disability Discrimination Act 1992. This Act prohibits discrimination on the basis of disability and encompasses a broad range of conduct, transactions, and entities, including businesses, educational institutions, and government bodies. The regulations extend to the Commonwealth, as well as the states and territories of New South Wales and South Australia, where the specified provisions have been identified as potentially inconsistent with the Act. The regulations aim to address these inconsistencies by prescribing certain state and territory laws, thereby allowing compliance with these laws without contravening the Disability Discrimination Act. Notably, the regulations do not create new laws but rather provide exemptions to ensure that actions taken in accordance with prescribed state and territory laws are not deemed unlawful under the Act. The regulations have been established in response to requests from the Attorneys-General of New South Wales and South Australia, who identified specific laws and provisions that require exemption under section 47(2) of the Act. These regulations commence on gazettal, meaning they take effect immediately upon publication in the Commonwealth Gazette.
Key Provisions
The Disability Discrimination Amendment Regulations 1999 (No. 1) are a critical set of rules under the Disability Discrimination Act 1992 (the Act). These regulations were introduced to ensure that certain specified laws, which may otherwise conflict with the Act, are exempt from the prohibition on disability discrimination for a period of three years (s.47(3)). This exemption allows for the necessary review and amendment of state and territory laws to align them with the provisions of the Act. Section 47(2) of the Act provides that certain actions taken in compliance with prescribed laws are not unlawful under the Act. The regulations list specific state and territory laws that have been identified as needing this exemption due to potential inconsistencies with the Act (s.47(2)).
These regulations impose specific obligations on the relevant state and territory governments to review and amend their laws to ensure they do not conflict with the Act. By making certain laws prescribed for the purposes of section 47(2), the regulations require that any actions taken in compliance with these laws during the three-year period are exempt from the Act's prohibition on discrimination. The state and territory governments are also obligated to take steps to amend their laws to remove any inconsistencies with the Act, facilitating a smoother integration of disability discrimination protections across different jurisdictions.
The regulations themselves do not create new offences or penalties but provide a framework for the exemption of certain laws from the Act’s prohibition on discrimination. However, the underlying Act imposes penalties for breaches of its provisions. For instance, under the Act, a person who contravenes a provision relating to discrimination can face significant penalties. The maximum penalty for individuals is generally six months imprisonment or a fine of up to $21,000, or both (s.114). For corporations, the maximum penalties can be much higher, with fines reaching up to $1,050,000 (s.114). These penalties underscore the importance of compliance with the Act and the regulations in ensuring that discrimination against people with disabilities is prevented and appropriately addressed.