EXPLANATORY STATEMENT
Sex Discrimination (Operation of Legislation) (No. 1) Regulations (Amendment)
Statutory Rules 1987 No. 8
Issued by the Authority of the Attorney-General
These regulations, made under section 116 of the Sex Discrimination Act 1984 (the Act), amend the Sex Discrimination (Operation of Legislation) (No. 1) Regulations (the principal Regulations)
Section 116 of 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 date of commencement of the Sex Discrimination Act 1984; or
(b) a regulation, rule, by-law, determination or direction in force at the date of commencement of the Sex Discrimination Act 1984.
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 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.
Regulations 3 and 4 of the principal Regulations as they now stand provide, in effect, that pargaraphs 40(1) (a) and 40(1)(b) of the Act shall continue in force indefinitely in respect of the Commonwealth and Territory legislation specified in the Schedule to the Regulations, and also in respect of all regulations, rules, by-laws, determinations or directions made under that legislation.
The proposed Regulations will repeal Regulations 3 and 4 of the principal Regulations and substitute new Regulations 3 and 4 which will provide that paragraphs 40(1)(a) and 40(1)(b) of the Act shall remain in force until 28 July 1988 in respect of the Commonwealth and Territory legislation specified in the Schedule to the principal Regulations and also in respect of all regulations, rules, by-laws, determinations or directions made under that legislation.
The purpose of this amendment is to impose a time limit within which the legislation specified in the Schedule to the principal Regulations is to be reviewed for consistency with the Act.
Overview
The Sex Discrimination (Operation of Legislation) (No. 1) Regulations (Amendment) Statutory Rules 1987 No. 8 were enacted to amend the Sex Discrimination (Operation of Legislation) (No. 1) Regulations, made under the authority of section 116 of the Sex Discrimination Act 1984. The primary purpose of these amendments is to introduce a temporal constraint on certain exemption provisions within the Act, specifically those outlined in paragraphs 40(1)(a) and 40(1)(b) of Division 4 of Part II. These provisions, which allow for compliance with other legislation and regulations made before the Act came into effect, will now cease to be in force on 28 July 1988, rather than indefinitely. This change is intended to ensure that the specified legislation and regulations are reviewed for consistency with the Act within a defined period, thereby promoting equality and eliminating discriminatory practices that may have been inadvertently preserved under the previous arrangements.
Scope and Application
The Sex Discrimination (Operation of Legislation) (No. 1) Regulations (Amendment) Statutory Rules 1987 No. 8, made under the authority of the Attorney-General and pursuant to section 116 of the Sex Discrimination Act 1984, amend the principal Regulations to modify the scope and application of certain exemption provisions. The Act applies to discrimination on the grounds of sex, marital status, or pregnancy within specified areas of activity, including employment, education, and the provision of goods and services. These regulations specifically address the interaction between the Sex Discrimination Act and other Commonwealth, State, and Territory legislation and subordinate instruments in force at the time of the Act's commencement on 1 August 1984. The amendment aims to impose a definitive end date of 28 July 1988 for the continued operation of exemptions provided by paragraphs 40(1)(a) and 40(1)(b) of the Act, thereby necessitating a review of the specified legislation for consistency with the Act within this timeframe. The Regulations ensure that these exemptions will no longer apply after the set date, thus aligning the exempted legislation with the overarching objectives of the Sex Discrimination Act.
Key Provisions
The proposed amendment to the Sex Discrimination (Operation of Legislation) (No. 1) Regulations, made under section 116 of the Sex Discrimination Act 1984, alters the operation of sections 40(1)(a) and 40(1)(b) of the Act. These sections, which permit compliance with other laws and regulations made prior to the Act's commencement, will now cease to apply on 28 July 1988, as opposed to continuing indefinitely (Reg. 3, 4). This change effectively imposes a deadline for reviewing and aligning specified Commonwealth and Territory legislation and regulations with the Act to ensure they do not conflict with its anti-discrimination provisions.
These new Regulations impose a clear obligation on the relevant authorities to review the specified legislation and associated regulations, rules, by-laws, determinations, or directions to ensure they comply with the Act’s prohibitions against sex discrimination. This requirement underscores the need for ongoing vigilance to maintain the integrity and purpose of the Sex Discrimination Act by ensuring that any pre-existing laws or regulations do not inadvertently permit discrimination on the grounds of sex, marital status, or pregnancy. The onus is on these entities to conduct this review and make necessary amendments before the stipulated deadline.
Breaching these provisions by failing to review and amend the specified legislation or regulations within the timeframe set by the Regulations could result in continued unlawful discrimination. Although the explanatory statement does not detail specific penalties, breaches of the Sex Discrimination Act itself can lead to substantial penalties, including fines and imprisonment. For instance, under section 58 of the Act, individuals or entities found guilty of contravening the Act can face fines of up to $216,600 for personal actions and $1,083,000 for corporate actions. These penalties underscore the seriousness with which the law treats non-compliance and the importance of adhering to the amended Regulations.