EXPLANATORY STATEMENT
Sex Discrimination (Operation of Legislation) (No. 2) Regulations (Amendment)
Statutory Rules 1988 No. 3
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 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.
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.
Regulation 2
By virtue of regulation 4(1)(a) of the Sex Discrimination (Operation of Legislation) (No.2) Regulations 1987 (‘the Principal Regulations’) section 26 of the Closer Settlement Act, 1904 and section 277 of the Crown Lands Consolidation Act, 1913 of the State of New South Wales are exempt from the operation of the Sex Discrimination Act until 31 January 1988. Those Sections are discriminatory on the grounds of sex and marital status.
Regulation 2 amends regulation 4(1)(a) of the Principal Regulations to extend the exemption until 31 July 1988. The extension of the exemption has been sought by the New South Wales Government to allow sufficient time for consideration of a proposal for legislation which would effectively repeal these two provisions.
Regulation 3
By virtue of regulation 5(2) of the Principal Regulations, regulation 6 of the Occupational Health and Safety (General Safety) Regulations 1986 and regulation 23 of the Labour and Industry (Lead Processes) regulations 1966 are exempt from operation of the Sex Discrimination Act until 31 January 1988.
Regulation 3 extends the operation of the exemption provided in regulation 5(2) of the Principal Regulations until 31 July 1988.
Regulation 6 of the Occupational Health and Safety (General Safety) Regulations 1986 and Regulation 23 of the Labour and
Industry (Lead Processes) Regulations 1966 deal with manual handling (prohibition against females lifting certain weights) and lead processing (females not to be employed in lead processing). The Victorian Government has advised that the Victorian Occupational Health and Safety Commission has developed new standards in regard to these matters. However these standards were not finalised until December 1987. The State Government has advised that it has not been possible for the Commission’s recommendations to be considered and new regulations made prior to expiration of the exemptions. Accordingly, an extension of 6 months for the exemptions for these regulations has been sought by the Victorian Government to allow time for appropriate replacement regulations to be made.
Overview
The Sex Discrimination (Operation of Legislation) (No. 2) Regulations (Amendment) Statutory Rules 1988 No. 3 were enacted to amend the Sex Discrimination (Operation of Legislation) (No. 2) Regulations 1987, providing temporary exemptions from the Sex Discrimination Act 1984 for certain state laws and regulations that were discriminatory on the grounds of sex and marital status. This amendment was introduced to address the need for additional time to consider and implement legislative changes that would replace these discriminatory provisions. The regulations were issued under the authority of the Attorney-General, in line with section 116 of the Sex Discrimination Act 1984, which empowers the Governor-General to make regulations necessary for carrying out or giving effect to the Act. The policy objective of these amendments was to provide sufficient time for state governments to review and reform discriminatory legislation and regulations, ensuring that they align with the non-discrimination principles of the Sex Discrimination Act.
Scope and Application
The Sex Discrimination (Operation of Legislation) (No. 2) Regulations (Amendment) Statutory Rules 1988 No. 3 apply to specified provisions in certain Acts and regulations that contain discriminatory content on the grounds of sex and marital status. The Act itself is a Commonwealth statute aimed at prohibiting sex discrimination in various areas of activity and applies to individuals, entities, and industries within Australia. The amendments in these regulations extend the exemption period for certain discriminatory provisions in state laws to allow time for legislative or regulatory changes to address the discrimination. Specifically, the amended regulations extend the exemption for sections of the Closer Settlement Act, 1904 and the Crown Lands Consolidation Act, 1913 of New South Wales, as well as regulations pertaining to occupational health and safety and lead processes in Victoria. These extensions are set until 31 July 1988, providing additional time for the respective state governments to implement necessary legislative reforms. The regulations also operate within the framework of the Sex Discrimination Act 1984 and do not alter the fundamental prohibition against sex discrimination, but rather manage the transitional period for specific state provisions that conflict with the Act.
Key Provisions
The primary provisions of these regulations are found in Regulations 2 and 3. Regulation 2 amends the exemption period for certain sections of the Closer Settlement Act, 1904 and the Crown Lands Consolidation Act, 1913 of New South Wales from 31 January 1988 to 31 July 1988. These sections are discriminatory based on sex and marital status. Regulation 3 extends the exemption period for Regulation 6 of the Occupational Health and Safety (General Safety) Regulations 1986 and Regulation 23 of the Labour and Industry (Lead Processes) Regulations 1966, which pertain to manual handling and lead processing respectively, from 31 January 1988 to 31 July 1988. These regulations were discriminatory towards females as they prohibited certain weight lifting and barred females from lead processing.
The Act and these regulations impose obligations on the relevant governments to consider and amend discriminatory laws or regulations to ensure compliance with the Sex Discrimination Act 1984. The New South Wales Government and the Victorian Government have sought extensions to allow time to review and potentially repeal or amend these discriminatory provisions. The regulations require that these governments work towards creating non-discriminatory alternatives within the extended timeframe.
Failure to comply with the Sex Discrimination Act 1984 can result in legal action under the Act. While the specific penalties are not detailed within the explanatory statement, the Act generally allows for penalties of up to $55,100 for individuals and $275,500 for bodies corporate for discriminatory practices. These penalties can be imposed by a court for breaches of the Act.
Civil and criminal consequences can also arise for non-compliance with these regulations. Although the explanatory statement does not specify particular civil or criminal penalties for breaching these regulations, breaches of the Sex Discrimination Act 1984 can lead to legal action, which may result in fines or other civil remedies. Additionally, under certain circumstances, criminal charges can be brought for more serious breaches, potentially leading to imprisonment. The exact penalties would be determined based on the specific nature and severity of the breach.