EXPLANATORY STATEMENT
Sex Discrimination (Operation of Legislation) (No. 2) Regulations (Amendment)
Statutory Rules 1987 No. 4
Issued by the Authority of the Attorney-General
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 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.
Three sets of regulations were made under section 116 of the Act to continue, for limited periods after the expiration of 2 years after the commencement of the Act, the application of paragraphs 40(1)(a) and 40(1)(b) of the Act in relation to certain Commonwealth, State and Territory legislation. These are:
• the Sex Discrimination (Operation of Legislation) (No. 1) Regulations which extend the exemptions for certain Commonwealth and Territory legislation;
• the Sex Discrimination (Operation of Legislation) (No. 2) Regulations which extend the exemptions for certain Commonwealth, State and Australian Capital Territory legislation; and
• the Sex Discrimination (Operation of Legislation) (No. 3) Regulations which extend the exemptions for certain legislation of the State of New South Wales.
The Sex Discrimination (Operation of Legislation) (No. 2) Regulations (“the Principal Regulations”) extend the exemptions in paragraphs 40(1)(a) and 40(1)(b) of the Act in respect of certain Commonwealth and State legislation until 31 January 1987 and in respect of certain other Commonwealth, State and Australian Capital Territory legislation until 31 July 1987.
These regulations amend the Principal Regulations to extend the former exemption for Commonwealth and State legislation from 31 January 1987 to 31 July 1987. At the same time, whilst the period of exemption is extended to 31 July 1987, the amount of such legislation so exempted has been substantially decreased.
The effect of the amendments is, first, that the existing reference to exemptions until 31 January 1987 for Commonwealth and Tasmanian legislation is removed. No extension of these exemptions was required by the Commonwealth or the State of Tasmania. The exemptions were removed to simplify the Principal Regulations. Secondly, the amendments extended the former exemption for all Western Australian legislation until 31 July 1987. Thirdly, the amendments extended the exemption for 4 Victorian Acts until 31 July 1987. The Principal Regulations previously provided that all Victorian legislation, except for 4 Acts for which an exemption is provided until 31 July 1987, was exempt until 31 January 1987. The effect of the amendment is that, under the Principal Regulations, as amended, a total of 8 Victorian Acts are to be exempt until 31 July 1987. The details of, and reasons for, the amendments are described below.
Exemption for Commonwealth and State Acts
Regulation 2 amends regulation 3 of the Principal Regulations which contains exemptions for Commonwealth and State Acts. The amendments, in effect, remove existing paragraphs 3(1)(a) and 3(1)(d), amend existing paragraph 3(1)(b) which is renumbered as paragraph 3(1)(a), amend existing paragraph 3(1)(c) which is renumbered as paragraph 3(1)(b) and change the date on which sub-regulation 3(1) is to expire from 31 January 1987 to 31 July 1987.
(a) Commonwealth Acts
Regulation 2 removes reference to certain provisions of Commonwealth Acts, being those specified in Schedule 1 of the Principal Regulations. The discriminatory aspects of those Acts were removed by the Sex Discrimination (Consequential Amendments) Act 1986 (Act No. 163 of 1986).
(b) Victorian Acts
Under the Principal Regulations all Acts of the State of Victoria were exempt from the operation of the Sex Discrimination Act. All but 4 Victorian Acts were exempt until 31 January 1987 by virtue of paragraph 3(1)(b), and the remaining 4 Victorian Acts are exempt until 31 July 1987 by virtue of sub-regulation 3(2).
The amendments have not affected the 4 Acts exempt until 31 July 1987. The effect of the amendment is to reduce the remaining number of Acts to 4 Acts (which are set out in new Schedule 1) and to extend the period of the exemption for those 4 Acts until 31 July 1987.
The extension of the exemption was requested by the Victorian Government to enable that Government to review the operation of the Acts which remain exempt.
(c) Western Australian Acts
Under the Principal Regulations all Western Australian Acts except the Factories and Shops Act 1963 were exempt until 31 January 1987 by virtue of paragraph 3(1)(c) and the Factories and Shops Act is exempt until 31 July 1987.
The amendments have the effect of exempting all Western Australian legislation until 31 July 1987.
The Western Australian Equal Opportunity Act 1984 contains a provision similar to section 40 of the Sex Discrimination Act. Unless extended by regulation the exemption in the Western Australian Act for inconsistent Western Australian legislation ceases on 8 July 1987. The Western Australian Government is currently reviewing its legislation to identify inconsistencies with the Sex Discrimination Act and the Equal Opportunity Act and has requested an extension of time under the Principal Regulations to finalise this review. The proposed extension under the Principal Regulations until 31 July 1987 thus ensures consistency between the periods of exemption. The extra very limited period of exemption available in respect of the Commonwealth Act (the period from 8 July 1987 to 31 July 1987) provides an opportunity to deal with any difficulties which may arise should the Western Australian Government determine a need for regulations under its Act to extend the exemption for certain legislation.
(d) Tasmanian Acts
Under the Principal Regulations, 5 Tasmanian Acts were exempt until 31 January 1987 and a further 2 Acts are exempt until 31 July 1987. No extension of the 31 January exemption was sought by the Tasmanian Government and this exemption has been removed by regulation 2.
Exemption for Subordinate Legislation
Sub-regulation 4(1) of the Principal Regulations exempted regulations, rules, by-laws, determinations or directions made under certain Victorian, Western Australian and Tasmanian Acts. Of these, the exemption for Western Australia is continued until 31 July 1987. For ease of understanding sub-regulation 4(1) was omitted and the reference to such subordinate legislation of the State of Western Australia was inserted in sub-regulation 4(2) which contains other exemptions for subordinate legislation and which is expressed to expire on 31 July 1987.
Consequential Amendments
Regulations 4 and 5 make consequential amendments to the Schedules to the Principal Regulations. Former Schedule 1 is replaced by a new Schedule 1 listing the 4 Victorian Acts for which the previous exemption to 31 January 1987 has been extended until 31 July 1987. Schedule 2 is amended by deleting reference to the Factories and Shops Act 1963 of Western Australia. As all Western Australian Acts are now exempt under sub-regulation 3(1) of the Principal Regulations and all sub-ordinate legislation exempt under sub-regulation 4(2), a separate reference to the Factories and Shops Act was unnecessary.