EXPLANATORY STATEMENT
Sex Discrimination (Operation of Legislation) (No. 3) Regulations
Statutory Rules 1986 No 196
Issued by the Authority of the Attorney-General
These regulations, made under section 116 of the Sex Discrimination Act 1984 (‘the Act’), continue until 31 January 1987 the application of paragraphs 40(1)(a) and 40(1)(b) of the Act in relation to certain legislation of the State of New South Wales.
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 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 1984; or
(b) a regulation, rule, by-law, determination or direction in force at the commencement of the Sex Discrimination Act 1984 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)(a) 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.
Proposed regulations 1 and 2 respectively provide for the citation of the Regulations and the Interpretation provision.
Proposed regulation 3 will provide that paragraph 40(1)(a) of the Act shall remain in force until the expiration of 31 January 1987 in relation to the Acts of the State of New South Wales specified in the Schedule and in force at the commencement of the Act.
Proposed regulation 4 will provide that paragraph 40(1)(b) of the Act shall remain in force until the expiration of 31 January 1987 in relation to the following regulations in force at the commencement of the Act:
(a) the Port of Sydney Regulations made under the Sydney Harbour Trust Act, 1900 and the Maritime Services Act, 1935 of the State of New South Wales;
(b) the Botany Bay (Oil Tankers) Regulations made under the Maritime Services Act, 1935 of the State of New South Wales;
(c) the Venereal Diseases Regulations, 1919 made under the Venereal Diseases Act, 1918 of the State of New South Wales.
| Authority: | Section 116 of the Sex Discrimination Act 1984 |
Overview
The Sex Discrimination (Operation of Legislation) (No. 3) Regulations 1986, issued under section 116 of the Sex Discrimination Act 1984, were created to address a specific issue regarding the application of the Act to certain state legislation and regulations. The Sex Discrimination Act 1984, enacted by the Australian Parliament, seeks to eliminate discrimination based on sex, marital status, or pregnancy in various areas of public life, with exemptions outlined in Division 4 of Part II of the Act. These regulations extend the exemption provisions concerning compliance with certain state laws and regulations until 31 January 1987, ensuring a smooth transition period while these state laws are reviewed and potentially amended to align with federal anti-discrimination standards.
Scope and Application
The Sex Discrimination (Operation of Legislation) (No. 3) Regulations 1986, made under section 116 of the Sex Discrimination Act 1984, aim to extend the application of specific exemption provisions until 31 January 1987. These provisions, originally set to expire two years after the commencement of the Act on 1 August 1984, are designed to ensure that compliance with certain State of New South Wales legislation and regulations does not contravene the Act. The Act itself prohibits discrimination on the grounds of sex, marital status, or pregnancy in various areas of activity, but allows exemptions where compliance with other legislation, state acts, or regulations is involved. The Regulations specifically address the continued operation of these exemptions in relation to certain New South Wales Acts and regulations, ensuring a smooth transition and compliance with both federal and state laws during this interim period.
Key Provisions
The Sex Discrimination (Operation of Legislation) (No. 3) Regulations (1986) under section 116 of the Sex Discrimination Act 1984 extend the application of certain exemption provisions until 31 January 1987. Specifically, regulation 3 extends the application of paragraph 40(1)(a) of the Act, which exempts compliance with other Acts, State Acts, or laws of a Territory, while regulation 4 extends the application of paragraph 40(1)(b), which exempts compliance with regulations, rules, by-laws, determinations, or directions made under such Acts, State Acts, or laws (paragraphs 40(1)(a) and 40(1)(b)). This extension applies to specified New South Wales legislation listed in the Schedule and certain regulations made under New South Wales Acts. These regulations ensure that compliance with certain pre-existing State laws will not be considered discriminatory under the Sex Discrimination Act 1984 during the extended period.
The Act, as governed by these regulations, imposes specific obligations on parties and entities to ensure that their actions do not contravene the prohibition against sex discrimination. The exemption provisions allow entities to comply with certain State laws without being subject to the Act’s anti-discrimination provisions. However, entities must ensure that any actions taken in compliance with the exempted State laws do not themselves constitute discrimination based on sex, marital status, or pregnancy in other respects not covered by the exemptions. The obligation is to balance compliance with both the State laws and the Act's overarching anti-discrimination principles.
Breaches of the Sex Discrimination Act 1984 can result in both civil and criminal consequences. Under the Act, individuals who believe they have been discriminated against can initiate proceedings in the Federal Court or the Federal Magistrates Court. For contraventions of the Act, the maximum penalty is generally a fine of up to $66,000 for individuals and $330,000 for bodies corporate, depending on the nature and severity of the breach. Additionally, the Act allows for the possibility of criminal prosecution in serious cases, where penalties can include imprisonment. The regulations themselves do not specify additional penalties but ensure that compliance with exempted State laws does not provide a shield against liability for discriminatory actions that fall outside the scope of these exemptions.