EXPLANATORY STATEMENT
Sex Discrimination (Operation of Legislation) (No. 3) Regulations (Amendment)
Statutory Rules 1987 No. 5
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. 3) Regulations (“the Principal Regulations”) extend the exemption in paragraph 40(1)(a) of the Act in respect of 14 Acts of the State of New South Wales, which are listed in the Schedule to the Principal Regulations, and extend the exemption in paragraph 40(1)(b) of the Act in respect of 3 sets of Regulations made under New South Wales Acts, which are specified in regulation 4 of the Principal Regulations, until 31 January 1987.
These Regulations amend the Principal Regulations. Regulation 2 amends regulation 3 of the Principal Regulations to extend the period of exemption for New South Wales Acts from 31 January 1987 to 31 July 1987. Regulation 3 amends the Schedule to the Principal Regulations by deletion of the Local Government Act, 1919, the Venereal Diseases Act, 1918 and the Workers’ Compensation Act, 1926.
The effect of these amendments is to extend the period of exemption for 11 of the 14 Acts set out in the Schedule to the Principal Regulations from 31 January 1987 to 31 July 1987. This is in response to a request by the Government of New South Wales for further extensions. The regulations have not affected the period of exemption for the regulations made under New South Wales Act which are referred to in regulation 4 of the Principal Regulations. That exemption is expressed to expire on 31 January 1987.
Overview
The Sex Discrimination (Operation of Legislation) (No. 3) Regulations (Amendment) Statutory Rules 1987 No. 5 were enacted by the Australian Parliament to address the need for extending exemptions from the Sex Discrimination Act 1984 concerning certain New South Wales legislation. Under section 116 of the Sex Discrimination Act 1984, the Governor-General has the authority to make regulations to carry out and give effect to the Act, including prescribing matters required or permitted by the Act. These amendments to the Sex Discrimination (Operation of Legislation) (No. 3) Regulations extend the exemption period for specified New South Wales Acts from 31 January 1987 to 31 July 1987, responding to a request by the Government of New South Wales for further extensions. The policy objective of these amendments is to allow additional time for the New South Wales government to align its legislation with the Sex Discrimination Act, ensuring compliance and preventing discrimination on the grounds of sex, marital status, or pregnancy in certain areas.
Scope and Application
The Sex Discrimination (Operation of Legislation) (No. 3) Regulations (Amendment) Statutory Rules 1987 No. 5 amends the Sex Discrimination (Operation of Legislation) (No. 3) Regulations to extend the period of exemption from certain provisions of the Sex Discrimination Act 1984 for certain Acts of the State of New South Wales and regulations made under these Acts. This amendment applies to the conduct of individuals and entities operating within the scope of the listed Acts and regulations, ensuring compliance with the overarching principles of the Sex Discrimination Act while allowing for specific legislative requirements. The amendments extend the exemptions until 31 July 1987, thereby providing additional time for compliance and alignment with the federal anti-discrimination framework. The regulations apply specifically within the Commonwealth of Australia, with a targeted focus on the State of New South Wales. Notably, the amendments do not affect the period of exemption for regulations made under New South Wales Acts, which remain set to expire on 31 January 1987.
Key Provisions
The Sex Discrimination (Operation of Legislation) (No. 3) Regulations (Amendment) Statutory Rules 1987 No. 5, issued under section 116 of the Sex Discrimination Act 1984 (the "Act"), provide amendments to the Principal Regulations. These amendments extend the period of exemption for certain Acts of the State of New South Wales from 31 January 1987 to 31 July 1987. Specifically, Regulation 2 modifies regulation 3 of the Principal Regulations, thereby extending the exemption for 11 Acts listed in the Schedule of the Principal Regulations (paragraphs 40(1)(a) and 40(1)(b)). Regulation 3 of the amending Regulations deletes three Acts from the Schedule: the Local Government Act, 1919, the Venereal Diseases Act, 1918 and the Workers' Compensation Act, 1926.
Under these Regulations, certain legislative provisions of the State of New South Wales that might otherwise conflict with the Act are exempted from the prohibition against discrimination based on sex, marital status, or pregnancy. The exemption applies to those Acts and regulations listed in the Schedule and regulation 4 of the Principal Regulations, and now, as amended, until 31 July 1987. This means that actions taken in compliance with these specified Acts and regulations will not be considered discriminatory under the Act during the extended period.
The Regulations impose obligations on entities and individuals to ensure that their actions comply with the exempted Acts and regulations, provided such compliance does not involve discriminatory practices. This includes a requirement for entities to review their policies and procedures to align with the exempted legislation, while ensuring that no discrimination occurs on the grounds of sex, marital status, or pregnancy. It is essential for the entities governed by these Acts and regulations to be aware of the amended timelines and ensure that their compliance does not inadvertently result in discriminatory practices.
Failure to adhere to the provisions of the Sex Discrimination Act 1984, despite the exemptions provided by the Regulations, may result in legal consequences. The Act provides for both civil and criminal penalties for breaches. Civil penalties can include compensation orders and pecuniary penalties, with maximum fines up to $99,000 for individuals and $495,000 for bodies corporate. Additionally, criminal penalties can apply, with fines up to $216,000 for individuals and $1,080,000 for bodies corporate, depending on the severity of the breach. It is crucial for entities and individuals to understand these potential consequences and ensure compliance with both the Act and the Regulations to avoid any legal repercussions.